R. v. LIU CHEUNG HON

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

MAGISTRACY CRIMINAL APPEAL NO. 278 OF 1993

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J U D G M E N T

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Hon Yang, CJ:

1. This is an appeal from a magistrate's decision referred to the Court of Appeal by Leonard J by virtue of Sec. 118(1)(d) of the Magistrates Ordinance. The questions reserved for consideration are: -

Section 9(2) of the Prevention of Bribery Ordinance provides: -

2. At the hearing of the appeal before us, it was agreed by both parties that subsections 2(a) and (b) relate to two ways of committing the same offence. The section does not create two separate offences.

3. In the event, we are concerned with only one question, i.e., that which is asked in para. 2(a) above. To answer this question, it is necessary simply to examine the relevant statutory provisions. We shall therefore confine ourselves to giving a bare outline of the facts.

4. In the middle of 1991, a firm of architects was involved in the renovation of the office premises of the Bank of America. The recipient of moneys, described in the charge before the magistrate, was a Dicky Chan. He was the project manager for the Bank of America's renovation of their premises at the Bank of Tokyo Tower, and he oversaw the tendering process of the project. His recommendation was that this project be awarded to an interior contracting firm called JLP owned by the appellant. The evidence was that, during a meeting between Dicky Chan and the appellant, the appellant thanked Dicky Chan and gave him about $63,000. At the time, the project at the Bank of Tokyo Tower was already underway. The appellant was convicted after trial by the magistrate under Sec. 9(2)(b) of the Prevention of Bribery Ordinance, on the basis that the sum of money was paid as a general sweetener rather than as a reward or inducement for any particular act of assistance.

5. The magistrate, having heard submissions, amended the charge from one that was brought under Sec. 9(2)(a) to one that came under Sec. 9(2)(b). This he did in full compliance of Sec. 27(1)(b) and (2) of the Magistrates Ordinance. The suggestion advanced on the appellant's behalf is simply that the magistrate should not have applied Sec. 27, but should apply Sec. 32(2) of the Prevention of Bribery Ordinance as a provision specifically applicable to offences under Part II of the Ordinance ( - a Sec. 9(2) offence comes within Part II).

6. Section 27 of the Magistrates Ordinance provides that, where it appears to the adjudicating magistrate that there is (a) a defect in the substance or form of any complaint, information or summons; or (b) a variance between the complaint, information or summons and the evidence adduced in support of it, he shall (our emphasis), subject to subsection (2) : -

By subsection 2: -

7. In our view, in a case heard before a magistrate, he or she must follow the section if an amendment of the charge is contemplated. The section is clearly mandatory.

8. Sec. 31 of the Prevention of Bribery Ordinance provides that no prosecution for an offence under Part II shall be instituted except with the consent of the Attorney General. Sec. 32(2) of the Ordinance is a procedural provision. It removes the need for the Attorney General's consent to prosecute an alternative offence where a consent is necessary under Sec. 31.

9. In the present case, the Attorney General's consent was, in fact, obtained in respect of the amended charge.

10. Having considered Sec. 27 and Sec. 32, we are of the opinion that the magistrate was obliged to, and therefore quite rightly did, follow Sec. 27 as the governing section for trials in the magistrates' courts. He would then be entitled to consider and apply Sec. 32, and then come to the view that the Attorney General's consent would not have been necessary in the case before him, brought as it was under Part II of the Prevention of Bribery Ordinance.

11. The question posed in para. 2(a) above is yes, coupled with the observations made in the last sentence of the preceding paragraph.

12. For the reasons given above, the appeal is dismissed.