HKSAR v. LAM TZE YIM

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No.186
(Criminal)

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J U D G M E N T

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Stuart-Moore, J.A.:

1. This Applicant was convicted on 14th March 1997 on 11 charges, following a trial before Deputy Judge Duggan in the District Court. All of the charges alleged the acceptance of an advantage contrary to section 4(2)(a) of the Prevention of Bribery Ordinance, Cap. 201, on various dates between 5th September 1989 and 17th August 1991. The Particulars of each offence were set out in identical terms save for the date, the respective business establishment to which the allegation related, and the value of the cheques or sums of money allegedly accepted. The charges were in these terms:

"On or about (the date) in Hong Kong, being a public servant, namely a sergeant of police in the Royal Hong Kong Police Force, without lawful authority or reasonable excuse, accepted an advantage, namely a gift, fee, reward or commission consisting of (the cheque or sum of money), as an inducement to, or reward for, or otherwise on account of, the said Lam Tze-yim performing or having performed an act in his capacity as a public servant, namely using his status and position as a police officer to prevent and overcome any attempts at unlawful interference in the conduct of business operations at (the relevant business establishment)."

2. This Applicant (D1) was tried with one other defendant (D2) who faced six charges on which he was also convicted. These charges corresponded to the first six offences relating to D1, and alleged that D2 offered advantages to D1, contrary to section 4(1)(a) of the Prevention of Bribery Ordinance.

3. D1 now seeks leave to appeal against conviction.

4. The Deputy Judge concisely set out the background to this case in his Reasons for Verdict in the following way:

"At all times relevant to the charges, D1 was a sergeant of police attached to Marine Division. In mid-1989, a karaoke lounge called Your Place Karaoke (Your Place) was established in Sha Tin. The proprietor of such was Jetshare Limited. PW1 and D2 were directors of such business. There were other shareholders.

In late 1990, another business called Banthai Thai Cuisine (Banthai) was established in Tsuen Wan. The proprietor was Wonderful Plus Development Limited. PW1 and D1 were directors and shareholders. There were others. At about the times mentioned in the first six charges against D1, and all charges against D2, Jetshare paid to a payee, Kwok Chi-chuen, the sums mentioned in the charges. These monies were, in fact, received by D1.

At about the times mentioned in the second five charges, Wonderful Plus paid to a payee, Lo Chi-luen, the sums mentioned in those charges. Lo Chi-luen is the wife of D1 who beneficially received such payments. The names Kwok Chi-chuen and Lo Chi-luen were given by D1 to the respective companies as the names in which D1 would receive payments. Neither of such persons ever worked for the respective companies.

All of the foregoing matters were not contested and have been proved by bankers affirmations, agreed evidence and other evidence ....

The real issue before the court was for what services D1 received the monies in question ...."

5. The case for the prosecution was that D1 received the payments for acting as a "protector" of the establishments, thereby using his then current status as a serving police sergeant to prevent and overcome any attempt at unlawful interference in the conduct of the business establishments.

6. It was the prosecution's contention that the overwhelming inference and only conclusion to be drawn from the facts was that all of these offences had been made out by looking, in particular, at the circumstances concerned with the reasons for the initial employment of D1 by the two business establishments, the acts of D1 following his employment and the manner of the payments to him.

7. In regard to the manner in which payment was made to D1, we can say immediately that we do not find that this feature of the evidence carried the case for the prosecution any further forward. On any view of the case, D1 might well have been anxious to cover up the payments to himself. At the very least he was committing offences of a disciplinary nature in regard to Police regulations and similar considerations may equally well have applied to offences under section 3 of the Prevention of Bribery Ordinance, by his acceptance of advantages as a Crown servant (as he then was) without general or special permission. In other words, we find that the reason why there was a cover-up relating to the manner in which these payments were made to D1 is equally consistent with a number of different explanations which are by no means confined to the commission of these offences.

8. It was the defence case that D1 only received these payments because he was a part-time consultant both as to promotions and publicity. D1 gave evidence in the trial that he never performed any duties in connection with security. He accepted that he may have committed disciplinary offences related to the undertaking of unauthorized part-time work. He explained why the payments, which were what he called "expenses", were made under names which were not his own. This was because PW1 had insisted upon this for reasons of convenience to the respective companies. The trial judge was justified in stating in the Reasons for Verdict that D1's explanation for not paying tax on monies received in the name of Kwok Chi-chuen was "unbelievable". Again, however, we can emphasize this is not a matter which we consider to have advanced the prosecution's case in any shape or form, although no doubt it had some bearing on how much weight should be attached to D1's evidence on the question of his general credibility.

9. Mr. Tse, who also appeared on behalf of the defence at the trial in the District Court, has advanced three principal categories of complaint in support of this application.

10. His primary and overall complaint is that the trial judge has arrived at verdicts by relying upon evidence which fell short of establishing guilt and which was given, on some aspects, more credence than it should have been. He submits that this has left gaps in the evidence which leave the verdicts fatally flawed.

11. In essence his three categories of complaint are these:

(1) that the Deputy Judge failed to give proper weight to certain evidence which was highly damaging to the credibility of PW1 - grounds 1 and 2;

(2) that the Deputy Judge reached findings of fact which were either contrary to the evidence, or were not supported by the evidence, or were as a result of a failure to consider all the relevant evidence - grounds 4 to 10 and 13 and 14; and

(3) that the Deputy Judge failed to resolve material inconsistencies in the case for the prosecution where key issues were concerned - grounds 11 and 12.

12. In the course of the argument it became necessary to look at section 4(2)(a) of the Prevention of Bribery Ordinance in order firstly to ascertain whether an off-duty police officer, working in plain clothes as D1 undoubtedly was, could "perform an act in his capacity as a public servant" in such circumstances as those presently before us.

13. The section provides:

"(2) Any public servant who, whether in Hong Kong or elsewhere, without lawful authority or reasonable excuse ..... accepts any advantage as an inducement to or reward for or otherwise on account of his -

(a) performing ......, or having performed ......, any act in his capacity as a public servant;

............. shall be guilty of an offence."(Emphasis added.)

14. We are indebted to counsel on both sides for the assistance they have provided on this point. Not for the first time has the phrase 'in his capacity as a public servant', called for the courts' consideration. In The Attorney-General of Hong Kong v. Ip Chiu and Another (1980) HKLR 11, the Privy Council approved the test to be applied in cases brought under section 4(2) of the Ordinance which was propounded by Leonard J. in Hong Kam-piu v. The Queen (1973) HKLR 120. The facts in Hong Kam-piu are unimportant save that they related to the solicitation of gifts, unlike the application presently before us which is concerned with the acceptance of advantages.

15. The passage cited by Lord Edmund-Davies (at p.16 in the Ip Chiu case) reads:

"Here the vital words are 'in his capacity as a public servant' ... It becomes, I consider, clear that the word 'capacity' cannot be intended to bear the narrow meaning which [appellants' counsel] would have me assign to it ... As I see it 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 abstain from a proposed course of action 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 a public servant and is a corrupt one ... The present Ordinance aims at the mischief of a police officer obtaining a gift from a member of the public for forbearing to act in a manner which would be embarrassing to that member of the public whether or not he be entitled (by virtue of his office) to do the act forborne, provided of course that the embarrassment sought to be avoided by the gift could not equally easily have been caused by the police officer had he not been a police officer."

16. The judgment then continued by holding that a public servant's 'capacity' should not be equated with his 'duty' pointing out that to do otherwise, would have the effect of considerably narrowing the meaning of the word 'capacity'.

17. It seems clear to us that if D1 had merely acted as a security officer or as a bouncer while 'moonlighting' from the Police Force at either of the establishments relevant to this application, without using his status and position as a police officer to prevent trouble of the kind which was contemplated, then he committed no offence under section 4 of the Ordinance. The task of a security officer or bouncer could 'equally easily' be undertaken by a member of the public as by an off-duty policeman. If, on the other hand, it was expected of D1 that he should use his status and position as a police officer to perform the acts alleged, and he accepted the advantages offered to him on the understanding and in the knowledge that this was so, in our judgment these offences would be made out.

18. In this context we have also had in mind the terms of section 11 of the Ordinance which reads:

"(1) If, in any proceedings for an offence under any section in this Part, it is proved that the accused accepted any advantage, believing or suspecting or having grounds to believe or suspect that the advantage was given as an inducement to or reward for or otherwise on account of his doing or forbearing to do, or having done or forborne to do, any act referred to in that section, it shall be no defence that -

(a) he did not actually have the power, right or opportunity so to do or forbear;

(b) he accepted the advantage without intending so to do or forbear; or

(c) he did not in fact so do or forbear."

19. Some of the evidence produced by the prosecution reveals that D1's attempts at intervention or mediation when trouble arose were ineffective.

20. The prosecution's case was not without its difficulties. PW1 and PW9 gave evidence under immunity from prosecution. PW3 and PW9 both had to be treated by the prosecution as hostile.

21. A crucial witness in the case was PW1. He had employed D1 and it was his responsibility that the payments to D1 were approved at directors meetings. It was PW1's evidence that D1 was employed primarily because he was a police officer who could bring his authority to bear if trouble arose. Promotion and publicity were not the reasons for employing him. In respect of the role to be played by D1 at Your Place, the evidence of PW1 was that he understood from D2, the other director, that D1 was a police officer who could help a great deal in the future with confronting troublemakers. D2 had said that apart from "paying the thugs (by which he seems to have meant the bouncers) we still have to pay the police officer because sometimes it requires both parties to solve the problem". Your Place then went on to give D1 payments for the reasons which the Deputy Judge found had been established and which are set out in the Reasons for Verdict at page 9Q:

"That D1 thereafter carried out duties with regard to security at (Your Place) is manifest from the evidence of prosecution witnesses. Initially, he was a frequent attender at the establishment. That was to oversee that there were no disturbances or that they were dealt with. It was widely known to staff that he was a police officer. His mobile telephone number was available for staff to call him if required. This was done from time to time, for example, the evidence of PW11. D1 did intervene in disturbances, as given in evidence by PW11 and also PWs 6, 2 and 3.

There is some evidence that PW5, as a representative of a local group, also settled disturbances for which he or his group were paid by the company. That was separate from and did not detract from the role which I find D1 played."

22. The shortcomings concerning the credibility of PW1, as Mr. Tse rightly concedes, were referred to in the Reasons for Verdict. These must have been in the mind of the Deputy Judge when he rejected D1's version and preferred the evidence of PW1 where there was direct conflict between the two on the important issues calling for decision.

23. Furthermore, while the evidence of PW1 may have left a 'gap', as Mr. Tse calls it, by its failure to supply direct evidence against D1 of the reason for D1's paid employment at Your Place, that gap was capable of being filled by other evidence. The Deputy Judge was entitled to adopt this in coming to the conclusion from inferences properly drawn that PW1 was signing cheques in favour of D1 precisely for the purpose he had been led to believe, namely for D1 to perform the security role in his capacity as a police officer.

24. The evidence that security work was involved and from which the inference could be drawn that it was done in his capacity as a police officer, came from a number of sources, and it is sensible to look at these in the context also of the evidence given about the Banthai arrangements. The Deputy Judge in his Reasons for Verdict at page 10K set out his findings in this regard as follows:

"D1's role at Banthai was even more clearly documented. He was given a monthly payment after being called in by management to mediate in a claim for protection money by a local group, presumably triads. He did attend and did mediate. This comes through clearly from the evidence of PW1 and PW10. This was supported by PW7 and 9. The latter appeared to be deliberately vague on such matter.

The proposal by PW1, to the directors at a meeting, to pay D1 for assuming a security-type role at Banthai and of the agreement to such, is also supported by more than one witness, namely PW1 and PW9. Later evidence that such was the reason for such payment came also from PW12, who raised an objection to such payments.

D1 attended the restaurant regularly to carry out such role and left his contact number and instructions that he should be contacted in case of further trouble. I accept the evidence of PW10 on this point as correct.

Overall, I find no doubt that in the case of both employments, the role in which D1 was hired was as alleged in the respective charges; that D1 knew and understood this, and received payments on such basis."

25. PW12, like D1, was a Banthai director and shareholder. He was also a police officer. He had invested a sizeable sum in the business. It was at about this time that he first met D1. PW12 attended directors' meetings on a fairly regular basis. In one such meeting where D1 was present, he testified that PW1 was asked about the work done by D1. PW1 replied that D1 was responsible for security work. He added that if someone came to disturb the restaurant during its opening, PW1 wanted D1 to sort it out. This is why he was paid money. This made PW12 angry because he took the view that a 999 call would have been enough to obtain assistance, and because he knew it was wrong for a policeman to be paid in the circumstances. The reaction from PW1 was one of embarrassment. D1 said that if it was not agreed he would not take up the job. Mr. Tse points to the cross-examination at p.459 in the Appeal Bundle, where, before PW12 had disagreed with the suggestion that security was never mentioned in D1's presence as the reason for payments being made to him, he did agree that he did not see D1 performing a security function in the restaurant. This point however is of little significance in the light of section 11 of the Ordinance. Even if the need never arose for security work to be undertaken by D1, but he was given advantages to deal with incidents as and when they arose in his capacity as a police officer, he would nevertheless be guilty.

26. Mr. Di Fazio submits, in my view correctly, that there was no need for direct evidence to be given of the reason why D1 was being paid by the two establishments, provided there was evidence from which the Deputy Judge could draw an irresistible inference that the payments were given as a reward for the performance of acts as alleged in the charges. The Respondent's argument is that in most cases it would be totally unrealistic to expect to find direct evidence of this kind unless, that is, an accomplice was prepared to give evidence for the prosecution, or a confession of guilt had been made. This may well be so, but it does not of course obviate the necessity of finding reliable evidence giving rise to proper inferences of guilt before convictions can be recorded.

27. Apart from the evidence of PW12 there was a considerable body of other evidence to be taken into account as the learned trial judge had indicated in his Reasons for Verdict.

28. PW2, as Deputy Manager at Your Place, said that a telephone or pager number through which D1 could be contacted, was kept in the premises. He related an occasion when D1 was present at some trouble involving ten "thugs" on either side. D1 went over to mediate without success. Later on he went into a VIP room. After that, the trouble eventually seems to have evaporated. PW2 went on to agree in cross-examination that he regarded D1 as a "boss" rather than a "protector" and that someone called Law Ying-kwong (PW5) was the sole employee with responsibility for security. However, that evidence does not detract from the central proposition that from time to time D1 did involve himself in matters concerned with security.

29. PW3 was manager of Your Place. He had been instructed that if anything happened at the premises, in the event that the directors could not be found, he should contact D1 "to seek advice from him if anything was concerned with the legal aspect, and if there was anything unexpected". PW3 provided evidence about three incidents when trouble had occurred and where D1 was immediately paged. He agreed with the suggestion that D1 was a "legal consultant" in contrast to the work done by the person employed to look after security.

30. PW6 worked as a waitress at Your Place, and also gave evidence that D1 had stepped in to prevent trouble. She recalled that the trouble she had witnessed had been stirred up by customers who happened to be police officers. She knew D1 as "Lam Sir" because he was a police officer, and she said that was how everyone addressed him.

31. PW11 was a cashier at Your Place. She had telephoned D1 following two separate incidents of violence on the premises.

32. PW9 was a shareholder in Banthai. He was also its managing director. He had been told that D1 was a police officer. After being treated as 'hostile' he said that, at a meeting of the directors at which D1 was present, it was agreed to pay D1 a "few thousand dollars". This was because he could assist in the event of triad elements creating trouble. He denied the suggestion, put in cross-examination by Mr. Tse in the trial, that D1 had not been present at this meeting. He also denied that he was deliberately and falsely implicating D1 by telling ICAC officers that D1 was being paid to solve troubles at the restaurant in his capacity as a police officer. However, PW9 did agree that he could not be clear of the wording which had been used at the meeting. He went on to agree with the suggestion that D1 was going to be paid because he was able to help and, if anything arose, he could be looked for to give assistance. In the mind of this witness, payment was not because D1 was a police officer. The confusion and obvious contradictions in PW9's evidence undoubtedly led the Trial Judge to make the observation to which earlier reference has been made that he "appeared to be deliberately vague".

33. PW10 was a director of Banthai. He was aware that soon after the restaurant opened people came along seeking "tor tei" (a protection fee). D1 was one of the management to see them and PW10 witnessed the end of the encounter when one of these unwelcome visitors that he termed "tricky people" said: "Lam Sir, we are leaving now". Following this, PW10 was told to approach D1 if anything of that sort occurred again, and he was given a telephone number to ring.

34. PW7 had a shareholding in Banthai and was also a director. He described a meeting with three or four triads who came to the restaurant, shortly after its opening, seeking money. PW7 was able to hear some of the conversation that took place in the room where D1 and PW1 met them for about 5 minutes. He thought he heard the words "police officer" mentioned amongst other phrases that were used in the course of conversation. The defence case that no such meeting ever took place was denied by PW7, but he agreed he was uncertain of the words used and that he could not be sure what had been said.

35. Most importantly, there was the evidence of PW1 who said that the salary paid to D1 was made out to D1's wife as a "reward for D1 helping us". He went on to say that the decision to give D1 a salary was because "he helped us to fix those troublemakers". He denied a suggestion that D1 was ever paid to do promotion or publicity consultancy.

36. We have given anxious consideration, following the hearing of this lengthy application, to whether the inferences drawn against D1 by the trial judge in respect of any or all of these charges were correctly drawn in the light of a considerable volume of evidence relating to the amount of work done by D1 in what might properly be termed the role of "general consultant", particularly on behalf of Banthai. The Deputy Judge clearly had this feature in mind also because, at p.8 of his Reasons, he said:

"I accept that he did some work about the establishments of such a nature. That was not, however, the reason for, nor the capacity in which, he was employed. In both establishments, he was employed after trouble with what must be taken as triad attempts to extort protection money."

37. In my judgment there is no justification for saying that any distinction can be drawn between the charges relating to Your Place and those which relate to Banthai. There was ample evidence before the trial judge, provided it could be safely relied upon, for the conclusions he reached when he convicted on all these charges.

38. The Reasons for Verdict are drafted with care. The Deputy Judge found that on "key issues" PW1 was truthful and reliable. The Deputy Judge was not concerned with whether or not that witness was guilty of criminal misdeeds which, as he put it, "at least raised a suspicion that such dealings may not have been proper". This was a reference to matters relating to PW1's general credibility. He was merely concerned with the extent to which he could trust the evidence of that witness on issues central to these allegations.

39. For my part, I am satisfied that he exercised the necessary caution before accepting the evidence given by PW1. He further indicated that he accepted the evidence of PWs 6, 10, 11 and 12 as "reliable and truthful". Regarding PWs 2, 3, 7 and 9, he described them as being generally truthful although he "doubted their reliability in some respects".

40. For the reasons which I have set out, there is in my judgment no substance to the argument that the trial judge failed to give proper weight to evidence that might be seen as damaging to the credibility of PW1. Furthermore, the findings which are given in the Reasons for Verdict were supported by evidence.

41. There were of course some inconsistencies in the evidence given by witnesses. That is not surprising. The case lasted a considerable time. The transcript which has been supplied to us begins with evidence on 14th February 1997 and finishes at page 609 with submissions on 5th March 1997. This Court has repeated on countless occasions that a District Court judge is not duty-bound to deal with every discrepancy that arises or to go into every single detail of the case. It would be absurd to expect that he should do so. D1 was entitled to know the reasons for the verdicts to have gone against him. These were explained in quite sufficient detail for him to have understood, and for this Court to review the reasoning that brought about the convictions.

42. Accordingly, in my view, there is no substance in any of the grounds of appeal.

43. For my part, I would refuse leave to appeal and dismiss the application.

Rogers, J.A. :

44. On 14 March 1997, the Applicant, D1, was convicted before the Deputy Judge in the District Court of 11 charges, all of a similar nature brought under section 4(2)(a) of the Prevention of Bribery Ordinance, Cap. 201.

45. The charges were that the Applicant being a public servant namely a Sergeant of police in the Royal Hong Kong Police Force accepted an advantage as an inducement to or reward for performing or having performed an act in his capacity as a public servant, namely using his status and position as a police officer to prevent and overcome any attempts at unlawful interference in the conduct of business operations of, in the first category, Your Place Karaoke and in the second category of the Banthai Thai Cuisine.

46. Section 4(2) reads as follows :-

"(2) Any public servant who, whether in Hong Kong or elsewhere, without lawful authority or reasonable excuse, solicits or accepts any advantage as an inducement to or reward for or otherwise on account of his

(a) performing or abstaining from performing, or having performed or abstained from performing, any act in his capacity as a public servant;

(b) expediting, delaying, hindering or preventing, or having expedited, delayed, hindered or prevented, the performance of an act, whether by himself or by any other public servant in his or that other public servant's capacity as a public servant; or

(c) assisting, favouring, hindering or delaying, or having assisted, favoured, hindered or delayed, any person in the transaction of any business with a public body, shall be guilty of an offence."

47. The brief facts of the case are that the Applicant was a Sergeant in the Marine Police. At some stage, he became known to the management of a karaoke establishment in Shatin called Your Place Karaoke. The proprietor of the establishment was Jetshare Limited, but effectively Your Place Karaoke was under the control of PW1. There were "bouncers" who were employed at Your Place Karaoke. Little need be said about them other than that they used or threatened force to attempt to keep control. Their efforts do not seem to have been entirely successful and disturbances apparently occurred at Your Place Karaoke.

48. As found by the Judge, approximately one to three months after one such disturbance D1 was engaged to assist in security. The evidence shows and the Judge found that he was paid at regular intervals at least the amounts set out in the charges. There is no finding in this respect but it was D1's case, and there is evidence to support it from prosecution witnesses, that D1 had been a patron of Your Place Karaoke for some period prior to this arrangement coming into effect.

49. At some later stage, it appears that some, at least, of those involved with Your Place Karaoke wished to set up a Thai restaurant in Tsuen Wan. Despite the fact that PW1 initially tried to disguise the fact that D1 assisted in the setting up of the Banthai restaurant in Tsuen Wan, he clearly admitted considerable assistance given by D1 in the setting up. This included D1 making two trips to Thailand to purchase items required in the restaurant. Evidence from other prosecution witnesses also indicates that D1 assisted in recruiting staff.

50. Furthermore, D1's evidence which was uncontradicted was that he himself had made a considerable investment in the Banthai restaurant of $100,000 and had secured investors to the tune of $3m or more.

51. PW1 was the Chairman of Wonderful Place Development Limited which was the company which owned and ran the Banthai restaurant. PW1's own investment in the Banthai restaurant was however limited to $74,000. Again, in respect of the Banthai restaurant, D1 received regular payments. There is no doubt on the evidence and as found by the Judge below that D1 intervened when what would euphemistically be called trouble-makers and perhaps more accurately be called gangsters or thugs threatened to create disturbances at the Banthai restaurant.

52. On the face of the bare facts, it would appear that probably a number of disciplinary offences were committed by D1 as well as offences under section 3 of the Prevention of Bribery Ordinance, Cap. 201 had probably been committed. That section at the relevant time read :-

"Any Crown servant who, without the general or special permission of the Governor, solicits or accepts any advantage shall be guilty of an offence."

Nevertheless, prosecution has been brought under section 4(2)(a).

The law

53. In considering whether D1 was acting in his capacity as a public servant in doing the acts alleged, the prosecution in this appeal relies upon the test set out by Leonard, J. in Hong Kam-piu v. The Queen (1973) HKLR 120 which was approved by the Privy Council in the case of The Attorney General of Hong Kong v. Ip Chiu & Another (1979) HKLR 11. The test propounded by Leonard, J. 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?"

54. The Ip Chiu case concerned a Mr. Chan who was a drug addict and a former police officer. He had been harassed by two serving police officers who had searched him and his home but had found no evidence of drugs. The police officers had wanted to take Mr. Chan to the police station and Mr. Chan's wife had offered them a sum of money. The police officers had indicated that the sum offered was not sufficient and had threatened to beat Mr. Chan to death unless sufficient money were forthcoming. Eventually, a further sum was given to the police officers but not the amount which they had asked for. The police officers were charged with accepting an advantage

"as an inducement to or reward for or otherwise on account of your abstaining from performing an act in your capacity as public servants, namely taking police action in respect of an alleged dangerous drugs offence."

55. Mr. Chan had said in evidence that his purpose in paying the money was to stop the Respondents from planting drugs on him. His wife had said that she had made arrangements to provide the money to induce the Respondents not to beat her husband up.

56. The Magistrate had found that the money had been paid

"whether to prevent beating up, planting, or to prevent future harassment, it was made to keep the officers 'off his back' and the totality of the evidence satisfies me beyond all doubt that payment was made, that it was an 'advantage', that it was made in connection with both the accused's activities as police officers without authority or excuse, and on account of their abstaining from taking further action against Mr. Chan."

57. The Court of Appeal in the Ip Chiu case said, inter alia, that the over-exercising by the policemen of their power was non-specific and that the fabrication of false evidence could never be part of the duties of a police officer or done in the capacity as a police officer. It is clear also from a later sentence in the Court of Appeal judgment that the Court of Appeal equated the duty of a police officer with the capacity.

58. The Privy Council having cited extensively from Leonard, J. said :

"It has to be said respectfully that the Court of Appeal never really dealt with Leonard J.'s test. Indeed, however unwittingly, they in effect discarded it, for more than once they equated a public servant's 'capacity' with his 'duty' and thus considerably narrowed the former word, which is the only one contained in section 4(2)(a)."

59. Then having adverted to the Respondents' argument that although the Court of Appeal were right to quash the convictions, the approach of the Court of Appeal was not supported because the correct test was that propounded by Leonard, J., the advice of the Privy Council continued :

"Nor can their Lordships (support the approach adopted by the Court of Appeal), for its acceptance would render section 4 largely ineffective."

60. It has to be noted however that the Privy Council did not allow the appeal because they went on :

"The fatal flaw in the prosecution's case was that the learned magistrate never found established that which was alleged, namely a corrupt abstention from 'taking action in respect of an alleged dangerous drugs offence'. The view most favourable to them was that money was paid to the accused to avert 'planting' or a 'beating up', but those acts could have been perpetrated equally well by a stranger as by a member of the police force. In any event, they cannot conceivably be said to have any relation to the charge preferred."

61. From the penultimate sentence can be derived the conclusion that in applying Leonard, J.'s test, the Privy Council were clearly of the view that even if police officers were on duty and in uniform it did not mean that everything they did was in the capacity as police officers. This was even on the basis that the Respondents in that appeal would only have been in the position they were because they were police officers. The penultimate sentence makes clear that the offence would have not been constituted if they had taken money for not "planting" as envisaged because the police officers would not have been acting in their capacity as police officers by planting evidence or beating up Mr. Chan.

62. Without in any way seeking to qualify the test approved by the Privy Council still less to suggest that it is not applicable, it still must be said that, as with any test, in applying the test it must always be borne in mind that it is a test and not a statutory definition of the relevant offence. It must therefore be applied with care. It must always be kept in mind that the ultimate question is whether the individual had acted in the capacity alleged. The test propounded by Leonard, J. relates to the time of the alleged offence, i.e. the present position and not the position in the past. In other words, the relevant part is "if the person in question were not the kind of public servant ....." and not "if the person in question had not at some time been the kind of public servant .....".

63. This latter matter was perhaps overlooked in the submissions on behalf of the prosecution in the present case where it was suggested that use by the Appellant of his knowledge, expertise or experience would constitute acting in his capacity as a police officer. That would not be applying the Leonard, J. test, it would be applying another and different test.

64. In the present case, the charges have been framed in terms of

"using his status and position as a police officer to prevent and overcome any attempts at unlawful interference in the conduct of business operations ....."

65. It is that therefore to which attention must be paid and the fact that D1 may have warded off would-be thugs because of any knowledge which he possessed or any expertise which he could bring to bear in a situation or any past experience, for example, the manner of conduct of a thug does not constitute an ingredient of the offence that D1 can be shown to have used his status and his position as a police officer rather than any special skill which his occupation as a police officer has left him with.

The facts proved in the present case.

66. There is no doubt on the evidence that :-

(1) D1 was paid at regular intervals by the companies which ran both Your Place Karaoke and the Banthai Thai Cuisine.

(2) The employees of the establishments knew that D1 was a police officer.

(3) D1's telephone number was in a telephone book available to staff.

(4) D1 had on occasions intervened in disputes and likely disturbances by talking to gangsters or other trouble-makers with varying degrees of success. In this respect, I note that the Judge in specifying witnesses who gave evidence to this effect included 2, PW6 and PW11, the record of whose evidence does not show them giving such evidence. What the evidence shows is that D1 was contacted. In respect of PW3, the evidence appears to me to be inconclusive.

(5) D1 was regarded as a legal consultant being good at "legal matters".

No evidence of discussion in D1's presence

67. These matters in themselves are not enough to prove that D1 took money on the basis that he would use his status and position as a police officer to prevent disturbances, or to use Leonard, J.'s test that he would not have been paid the sums he was had he not been a police officer at the time.

68. As Counsel for the Appellant submitted, it had not been proved at the trial that D1 had been present or taken part in any discussions relating to his employment in the establishments on the basis that he would be using his position or status as a policeman to prevent disturbances. PW1 had given evidence that that was his intention in employing D1. However it transpired that that intention had been formulated as a result of PW1's discussions with D2, who did not give evidence, and not with D1.

69. PW9 had been the Managing Director of the Banthai Restaurant. He gave evidence under an immunity. The Judge below allowed him to be treated as a hostile witness. Under cross-examination by the prosecution initially he said that D1 had been paid because he was a police officer and was capable of assisting in the event of triad elements creating trouble. That had been agreed at a meeting at which D1 had been present. However, under cross-examination by Counsel who appeared for both Defendants, PW9 admitted that he could not be certain as to the words used and that what he said was his personal feeling for the reason why the company was paying D1. The Judge below said in respect of part of PW9's evidence that he appeared to be deliberately vague. Even assuming that statement applies to this aspect of his evidence, the sum total of the evidence, particularly after the cross-examination is nevertheless not sufficient to prove that the reasons put forward in the charges for the employment of D1 were discussed in his presence.

No evidence of acts done by D1 in his capacity as a Police Officer

70. The Appellant further points out that there is no evidence that D1 had used his position as a police officer in the course of negotiating with the triads or other undesirable elements.

71. It has not been shown that in talking to the gangsters and triads, D1 used his authority or position as a police officer. PW6, for example, was a waitress at Your Place Karaoke. She called D1 "Lam Sir" because he was a police officer. That mode of address is no doubt one of respect but does not of necessity dictate that the person involved was being addressed as a police officer.

72. Evidence of other witnesses was similarly non-conclusive. It is of no-use a witness saying that he thought he heard the word police officer being used in a conversation if his evidence was that he could not hear the conversation taking place.

Inferences that can be drawn from proved facts

73. The prosecution sought to make good the deficiencies in the evidence by reliance upon inferences which it is alleged could be properly drawn from proved facts. Various facts have been referred to above.

74. The fact that the employees of the establishments knew that D1 was a police officer does not necessarily entail the fact that customers and triads would have known that fact.

75. The fact that D1's telephone number was available to staff may go to show that D1 took part in trying to intervene with trouble-makers but it does not go to show that in so doing he acted in the capacity as a police officer. In any event directors' and customers' telephone numbers were also in the book.

76. The fact that PW10 who was a Director of Wonderful Place Development Ltd said that after the "tricky people" left, they said "Lam Sir, we are leaving now." again does not mean that D1 who was regarded as being one of the bosses of the Banthai restaurant was being held in awe as a police officer.

77. Finally there was the evidence of PW12 in relation to a conversation at a board meeting of Wonderful Place Development Limited at which he maintained D1 was present. PW12 was a police officer but not a marine police officer. He said that he had expected the Banthai restaurant to make a profit but from the accounts it was making a loss. He was therefore making enquiries as to why the expenditure was so high and in particular why 6 people were being paid a salary by the Company. Amongst those were PW1 and D1. He asked PW1 why D1 was being paid and he was told that D1 was responsible for security. PW12 says that he then asked PW1 why D1 was responsible for security and that PW1 said that people had come to cause a disturbance at the opening of the restaurant and that PW1 wanted D1 to be responsible for security. PW12's evidence then continued:

"The first thing I told Mr Lo was it was only a restaurant and it did not require any security. I said it would be all right if you dial 999 to ask for assistance. Another thing is Mr Lam Tze-yim, himself was police officer, he should know about this, the position. So in fact it was not necessary to be a security and to be given wages. And then I said if you want to do that then I will become one because I myself am a police officer. And in fact I am not requiring - - I'm not asking for, or not requiring wages. I am one of the shareholders and if there was anything happening to this company I would also dial 999."

78. The fact that PW1 wanted D1 to be responsible for security cannot on its own be taken to mean that PW1 wanted D1 to use his authority as a police officer unless something extra is read into that statement. That would not only be more than the witness had said but also not even supported by the witness giving evidence that he had thought at the time that that was implied by what PW1 was saying. In cross-examination when pressed as to whether PW1 had said anything else about the reasons for wanting D1 to do security work, PW12 said that as far as he could remember nothing else had been said. In re-examination he was asked to read out part of a statement he had made to the ICAC where he said that he believed that what PW1 had meant was that D1 was hired in his capacity as police officer to be security. It is important to note, however, that he had not said in evidence that that had been his belief.

79. PW12 was complaining that money was being spent unnecessarily by paying somebody to look after security when all that was expected to be done was to call 999. In this respect it was similar to the complaint D1 had apparently made at the same meeting where he had objected to directors, of whom PW12 was one, being paid for attending directors' meetings. That seems to have been an odd arrangement and the comment could be made that would seem to be an arrangement that was peculiar to Wonderful Place Development Ltd.

80. Calling 999 is not acting in the capacity of a policeman, indeed rather the reverse: it is an act anybody other than a police officer could be expected to do and that was the cause of complaint. It does not seem to me possible to say that there is an irresistible inference from that conversation that D1 was being paid to use his authority or position as policeman or in the words of the Leonard test that he would not have been paid to call 999 if he were not a policeman. In saying that D1 knew about 'the position', that was said in the context of it being unnecessary to employ anybody to look after security. The clear implication from the last sentence in my view was that as far as PW12 was concerned what D1 was doing was to call 999.

81. Whilst I appreciate that it may be the case that D1 was expected to use his authority and position as a police officer to exercise authority over or at the least command respect of the undesirable elements it is still necessary to prove that either from direct evidence or from inferences which can be properly drawn. Strong though a suspicion may be it does not constitute an inference which proves an ingredient of an offence unless that inference is one that unarguably follows from the basic facts upon which it is based. In this case, not only was the basic evidence clearly unsatisfactory, as the Judge below appreciated, but the inferences did not unarguably follow.

82. One matter which I would also mention is that although of course the Judge does not have to state every element in his reasoning there is another aspect of the case in relation to the Banthai Cuisine which causes me some concern. The Judge below does not mention in his judgment the investment put into Wonderful Place Development Ltd by D1 or the considerable finance which he was able to raise therefore. This in itself would be reason enough for D1 to wish to find some pretext to receive a return from the Company. Although the Judge does make a finding that D1 did some work in relation to promotion and publicity that is expressed to be in relation to both establishments and is in terms which would seem to give no credit for the substantial extra activity in relation to the Banthai Cuisine where D1 on the evidence of the prosecution witnesses was clearly considerably involved in the establishment of the restaurant.

83. For these reasons, I would allow this appeal.

Nazareth, V.-P.:

84. I would dismiss the application for leave to appeal for the reasons given by Stuart Moore JA.

85. I add the following. The evidence, which my Lords have helpfully set out, is not in dispute. It reveals a situation that is not directly met by the provisions of the Prevention of Bribery Ordinance. It is in these circumstances that the test propounded by Leonard J (as he then was) in Kong Kam-lui [1973] HKLR 120 reveals its value. Simply to apply the words "in his capacity as a public servant" in s.4(2) literally to the facts in this case would not only be difficult but would be apt to render s.4(2) ineffective. In that regard it has to be noted that the Privy Council in The Attorney General of Hong Kong v. Ip Chiu and another [1979] HKLR 11;15 stated that Leonard J's test was "the correct test in section 4(2) cases". Moreover, this Court in R. v. Leung Kam-ho Gilbert [1955] 1 HKCLR 90; 110 l 25 expressly held that test as "plainly the right test" in addressing the question of "capacity as a public servant" in the context of s.4(2).

86. The test appeared in the following passage in Leonard J's judgment as parsed by Lord Edmund-Davies at p. 16 of the Privy Council judgment in Ip Chiu:

"Here the vital words are 'in his capacity as a public servant' ... It becomes, I consider, clear that the word 'capacity' cannot be intended to bear the narrow meaning which [appellant's counsel] would have me assign to it ... As I see it 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 abstain from a proposed course of action 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 the gift has been solicited or given to him in his capacity as a public servant and is a corrupt one ... The present Ordinance aims at the mischief of a police officer obtaining a gift from a member of the public for forbearing to act in a manner which would be embarrassing to that member of the public whether or not he be entitled virtute officii to do the act forborne, provided of course that the embarrassment sought to be avoided by the gift could not equally easily have been caused by the police officer had he not been a police officer." (emphasis supplied)

Three observations have to be made upon the foregoing test indicated by the emphasis supplied. First, it was approved without qualification by the Privy Council. In this regard I have to say that I see no qualification in the penultimate paragraph of the judgment at p. 17 (substantially reproduced in the judgment of Rogers JA). Their Lordships' point was that notwithstanding that the Court of Appeal were wrong in effect in discarding Leonard J's test, the test in fact led inescapably to the same conclusion because the "planting" or "beating up" could be perpetrated equally well by a stranger as by a member of the police force. That was a view of the facts taken there by their Lordships' (and shared apparently by the Attorney General); there is no matter of principle or law involved in the factual view that the "planting" or "beating" could have been perpetrated equally well by a stranger. It does not seem to me that the view expressed was a gloss upon Leonard J's test. And plainly those two acts did not have any relation to the charge preferred there. I digress to say that the situation here is very different, the appellant having been charged with accepting an advantage for using his status and position as a public officer to prevent unlawful interference. That act had everything to do with the charge and it demonstrates that their Lordships' views in question were concerned with the particular facts before them, and not any sort of qualification of the test.

87. The second observation I wish to make is that the test was thereafter, as I have said, followed without question nor any qualification or reservation by this Court as "plainly the right test" in Leung Kam-ho Gilbert.

88. In those circumstances it seems to me that this Court is now bound to adopt the test where it applies, as it does here. Furthermore, I cannot see any good reason or ground for seeking to distinguish in some way the circumstances here.

89. Reverting to the passage in the judgment of Leonard J that I have quoted from the Privy Council judgment in Ip Chiu, it can be seen that it is expressly in the context of the question of the corruptness of a gift both given to or solicited by a public servant, that the test is enunciated. In that light, it does not seem to me that the soliciting public servant's knowledge of the donor's intentions are a material consideration in the application of the test. In any case, in the circumstances of the present case, there seems to me to be ample evidence upon which the appellant's knowledge of what he was being paid for could be inferred.

90. The third observation I have is that although the Board had every opportunity to say that illegal acts e.g. "planting", "beating up" and "fabrication of false evidence" could never be done by a police officer in his capacity as a police officer, that is not what they said. On the contrary, they referred to what the accused was charged with abstaining from, pointing out that the evidence fell far short of establishing that anything of the sort had happened. As to the latter observation, the purpose of the test is to determine whether an offence under s.4(2) has been established; if the charge is so framed that what is alleged was not or cannot be established, then that must be the end of the matter. That is not the case here. The appellant was charged with accepting an advantage for performing an act using his status and position as a police officer. Any realistic view of the evidence and the circumstances, in my view, amply supports the conclusion that the advantage was offered because the appellant enjoyed a status and position of a police officer without which the advantage would not have been given. That conclusion could be strengthened by the knowledge or expertise a police officer would have or might have acquired as such, but I cannot see that it could properly be undermined by the officer being better placed to obtain the advantage by some special knowledge or expertise he has, if his status and position as a police officer was a material reason for the advantage having been given.

91. By a majority, therefore, the application for leave to appeal is dismissed.