HKSAR v. WONG WAI KI

HCMA 732/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 732 OF 2001

(ON APPEAL FROM ESCC 999/2001)

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J U D G M E N T

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1. This Appellant was convicted after trial of one count of Being a Government Officer Accepting an Advantage, contrary to section 3 of the Prevention of Bribery Ordinance, Cap. 201 and one count of Offering an Advantage, contrary to section 9(2)(a) of the same Ordinance. The Appellant was sentenced on the 1st charge to 6 months imprisonment; on the 2nd charge a sentence of 12 months imprisonment was imposed. 4 months of the sentence on the 1st charge was made concurrent and 2 months was made consecutive to the sentence on the 2nd charge, making a total of 14 months imprisonment for 2 offences.

2. The Appellant appealed against conviction on the 1st charge, having abandoned his appeal against conviction on the 2nd charge and appealed also against sentences on both Charges 1 and 2.

3. In his Statement of Findings the Magistrate set out the facts as he found them. He found that the Appellant, who worked for the Inland Revenue Department as a Tax Inspector II, and had done so since 1998, was a government officer for the purposes of s.3 of the POBO, Cap. 201. The Appellant introduced his friend, Mr Seto, to another friend of his, Mr Li, when he learned that Mr Seto's company was the subject of IRD enquiries. Mr Li was a tax advisor who had himself worked in the IRD at an earlier time. As a result of this introduction Mr Seto's company hired Mr Li's firm as advisors and paid $100,000.000 as a retainer.

4. Shortly afterwards the Appellant received a payment of $10,000.00 at Mr Li's direction which was paid to him through a company, HXA, which was controlled by Mr Li. The Appellant did not report the receipt of that sum to his employer and admitted in his cautioned statement that the $100,000.00 was a referral fee. He later paid the sum of $5,000.00 over to Mr Seto. This payment was the subject of the second charge of which the Appellant was convicted.

5. The Magistrate agreed that the $10,000.00 was a referral fee and, having considered the evidence, found that it was an "advantage" as defined in s.2 of the POBO. He found that the Appellant did not have the general or special permission of the Chief Executive and convicted him.

6. The thrust of the defence at trial was that the Appellant had accepted the $10,000.00 in his private capacity and that it had nothing to do with his employment as a government officer, or the work he was employed to do by the Inland Revenue. He said he gave $5,000.00 to Mr Seto as a housewarming gift and again that had nothing to do with Mr Seto's employer.

7. The grounds of appeal were that the trial Magistrate erred in holding that the payment of $10,000 to the Appellant was "a gift, fee, reward or commission" and further erred in holding that the Appellant received such an advantage without having the general or special permission of the Chief Executive. Further, it was submitted that the trial Magistrate failed to determine and/or make a specific finding as to whether the advantage was a gift, fee, reward, commission and that he should have done so.

8. The Appellant argued that the Magistrate, having decided what category the money came into, should have held the same as lawful as being authorized by paragraph 2(a) of the Acceptance of Advantages (Chief Executive's Permission) Notice 1992, Cap. 201("the Notice"). An additional, or alternative, ground was that if the Magistrate held the advantage was a gift, then it had been authorized by paragraph 4(1)(d) of the Notice because the conditions in paragraph 4, sub-paragraph (2)(a) and (b) of the Notice were satisfied. On that basis, it was said that the conviction on the 1st charge was unsafe and unsatisfactory.

9. Under section 2 of the Prevention of Bribery Ordinance, "advantage" was defined as including any gift, loan, fee, reward or commission. The Notice does not give any similar definition. The Respondent submitted, in my view correctly, that to give the Notice its full effect, it had to be read in conjunction with the Prevention of Bribery Ordinance, Cap. 201.

10. The Respondent submitted that a broad meaning should be given to the word "gift". The word "reward" in s.1(1) of the Public Bodies Corrupt Practices Act 1889, (which has some similarities with s.3 POBO but is more akin to s.4 POBO), was construed in Andrews Weatherfoil Ltd and ors, 56 Cr App R 31 and was there given the natural meaning of ex post facto gift without any antecedent agreement. The Respondent submitted that the referral fee, in substance, is a kind of reward which is also an ex post facto gift. That would take the $10,000.00 outside the ambit of the general permission granted under paragraph 2(a) of the Notice.

11. In Woo Main-wai v R, CA 655/1975, where the accused was charged with one count of offering under section 4(1) of the Prevention Bribery Ordinance, Huggins J said:

"A gift is a "reward" and may constitute corruption where it is made by a person who intends it as a reward. It is the purpose in the mind of the offeror with which we are concerned."

12. Clearly the money given to the Appellant was a reward for his introducing business to the company and the sum could be regarded as an ex post facto gift, even without any antecedent agreement. It was common ground that the money had not been solicited by the Appellant. A wide meaning has to be given to the word "advantage" in its context in particular because s.3 is a preventive section. The Magistrate accepted that the money given to the Appellant was an ex post facto gift, it would not therefore be covered by the general permission granted by paragraph 2(a) of the Notice.

13. The Appellant relied on paragraph 4(1) of the Notice which would give a general and special permission for the Appellant to accept the gift, because the tax company was offering referral fees to anyone who introduced business to the company and the Appellant was acting in his private capacity.

14. However, paragraph 4(2)(a) of the Notice sets out two conditions which have to be satisfied :

(1) the advantage given must be equally available on equal terms to persons who are not Government servants; and

(2) the donor of the advantage must have no official dealings with the Government servant.

15. Although counsel submitted that the Appellant because of the low grade nature of his post could not have been of any significant use to someone seeking a tax referral, the Magistrate found that the Appellant was approached because he was working in the Inland Revenue Department which gave him access to information and the opportunity to contact other divisions even though he did not conduct tax enquiries himself. The Appellant was asked for his views as to what the company could expect from such an inquiry and was privy to the information that Mr Seto's company accounts were in a mess. Further the Appellant socialised with Li and Seto regularly and also had other paid work from Mr Li, who himself formerly an Inland Revenue Department staff member.

16. There was evidence that it was company policy to pay referral fees to persons who brought in business, but such fees were not fixed and were related to the value of the referral. Given that background, the advantage could not be said to be equally available on equal terms to persons who were not government servants.

17. The second limb of the proviso was not satisfied either. The phrase "official dealings" is very wide and takes into account that there does not have to be direct or personal involvement in the matters and dealings contemplated. The general and special permissions under the Notice could not assist the Appellant and the Magistrate so found.

18. I did not find any substance in the ground that the Magistrate did not make a specific finding as to the nature of the advantage. The Magistrate found that the money referred to as the referral fee had been accepted by the Appellant and that it constituted an advantage. It was sufficient that the Magistrate found the sum to be an advantage; he did not have to specify, or name that particular advantage. Although the Magistrate referred to a referral fee, he could equally have described it as a "gift" or "reward". That he did not do so does not denigrate from the fact that the money was clearly an advantage, accepted as such by the Appellant. For these reasons, I dismiss the Appellant's appeal against conviction.

Appeal Against Sentence

19. Counsel for the Appellant relied on the decision in Lai Yuk-kui v R [1981] HKLR 691 to support his submission that there was no tariff for s.3 and s.9 offences. He contended that the offences were at the lower end of the scale of moral culpability because of the personal friendship of the protagonists; the absence of active solicitation for the sums received and paid and because, in his view, the payments did not relate to the work of the Appellant.

20. Counsel also submitted that the 2 offences were closely linked in time and in their nature and, as each offence arose from the same circumstances, they could be said to form one course of conduct which would have justified wholly concurrent sentences, rather than the partly consecutive sentences which were passed.

21. I was referred to various cases for the purpose of showing that concurrent sentences were not unusual in this type of case.

22. In R v Luk Wai-lun, MA 188 of 1988, on a plea of guilty, 6 months concurrent for each of 2 s.9 POBO offences were held not to be excessive. In R v Cheng Chi-sang, MA 1373 of 1996, a sentence of 7 months imprisonment, on 2 charges under s.3 which were to run consecutively, was considered on the high side.

23. In HKSAR v Chan Chong-chi, MA 1233 of 1999, 3 offences under s.9(2)(a) and under s.12(1) POBO were ordered to be concurrent and on appeal were suspended for 12 months.

24. Counsel submitted that the total of 14 months imprisonment was "somewhat excessive" in all the circumstances of the case and disproportionate in view of the Appellant's true criminality and moral culpability, but rightly, did not pursue that part of his argument very strongly, recognising no doubt that a sentence that is "somewhat excessive" hardly reaches the criterion of manifestly excessive, such as to require the intervention of an appellate court.

25. Having considered the facts of the case and having considered other cases of a similar nature however I consider that these 2 offences, although separate offences, can be regarded as having arisen out of the same factual matrix such as would justify the sentences being ordered to run concurrently.

26. I am satisfied that justice could be done equally by making the sentences concurrent and I allow the appeal against sentence to the extent of ordering that the sentences on Charges 1 and 2 run concurrently.