THE QUEEN v. LEUNG KAM HO

IN THE COURT OF APPEAL

1993, No. 286
 (Criminal)

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J U D G M E N T

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Litton, J.A.:

1. The applicant Mr. Gilbert Leung Kam-ho was convicted on 1 June 1993 on three charges of bribery after trial by jury in the High Court and he was sentenced to a total of three years' imprisonment. He now applies for bail pending appeal under section 83R of the Criminal Procedure Ordinance, Cap. 221. This section gives the Court of Appeal wide discretionary powers which must of course be exercised in accordance with well-known principles.

2. After conviction an appellant has of course lost his presumption of innocence and it is common ground between the parties that this court cannot properly admit the applicant to bail unless (1) it appears to the court at first sight that the appeal is likely to be successful or (2) there is a risk that the sentence will have been served by the time the appeal is heard.

3. On count 4 the applicant was sentenced to nine months' imprisonment and if that count stood alone there is plainly a risk that the appeal will not have been heard before that sentence is served. Accordingly, at the commencement of the hearing today I invited counsel to confine his submissions to counts 1 and 5, under the supposition that if he succeeds in his application regarding those two counts, the applicant should be admitted to bail without further consideration of the merits of his appeal on count 4.

4. Very substantial bail and undertakings by sureties who are members of the Legislative Council have been offered in the event of my allowing bail and I am satisfied that if admitted to bail the applicant will appear at the hearing of the appeal. I therefore confine my consideration of this application to whether, on the present submissions of counsel and on the material before me, there is a prima facie case that the applicant is likely to be successful on his appeal on counts 1 and 5 of the indictment. They both relate to offering an advantage to a public servant contrary to s4(1)(a) of the Prevention of Bribery Ordinance, Cap. 201.

5. In essence, five grounds of appeal have been put forward. I will deal with them only briefly, conscious of the fact that this is not the hearing of the appeal itself and what I am able to form at this stage is only a preliminary view.

6. (1) Whether in relation to Mr. Fung, the offeree in count 1 and Mr. Cheung, the offeree in count 5, the offers were made in their capacities as public servants. This boils down to a pure question of law. The bare facts are not in dispute. I can state them very briefly. (i) They were members of the Regional Council and as such were registered as electors in the Regional Council functional constituency for the purposes of the September 1991 Elections to the Legislative Council. (ii) The acts alleged in counts 1 and 5, that is offering sums of money, were alleged to have been on account of each of them casting a favourable vote for the applicant who was a candidate for the Regional Council seat in those elections. (iii) Mr. Fung and Mr. Cheung, as members of the Regional council, were by definition public servants.

7. To be entitled to vote in the Regional Council functional constituency as an elector each Regional Council member must first be duly registered as an elector under the Electoral provisions Ordinance Cap. 367. There are 36 members of the Regional Council and at the 1991 Elections each was entitled to vote for the declared candidates in the Regional Council functional constituency under a preferential voting system.

8. Mr. Cheng Huan QC's argument runs thus: When Mr. Fung and Mr. Cheung voted in the September 1991 Elections they did so in their capacities as electors, duly registered under the Electoral provisions Ordinance, Cap. 367, not as members of the Regional Council; therefore, as such, they were not public servants. I have been taken briefly through the statutory scheme comprised in the relevant ordinances. It seems clear that the right to vote in the Regional Council functional constituency is derived from the member's capacity as a registered elector in that constituency. And he could not be so registered unless he was at the relevant time a member of the Regional Council.

9. The argument seems therefore to boil down to this. Where the charge avers that a reward was given for performing an act "in his capacity as a public servant" does one attribute a narrow or a broad meaning to the word "capacity"? The judge applied what has been referred to as the Konq Kam-piu test, referring to the case of Konq Kam-piu (1973) HKLR 120, and he put to the jury this question, namely: Whether they were sure that the money would not have been offered to Mr. Fung in count 1 and Mr. Cheung in count 5 if he had not been a member of the Regional Council, and regarded for that reason by Mr. Fung and Mr. Cheung and the defendant as entitled to vote in the election.

10. The distinction between a person's capacity as a member of the Regional Council and his capacity as an elector in the functional constituency, and whether an act was done in one capacity or the other, seems to me to be a very fine one indeed. I am not satisfied at this stage that there is arguably a valid distinction. It follows, therefore, that this point must fail.

11. (2) The second ground of appeal is in effect this: whether arguably Mr. Fung was an accomplice and therefore the judge erred in not leaving that issue to the jury. The argument as I understand it runs along these lines.

12. In relation to count 4, whilst Mr. Fung denied that he was a willing recipient of the money, nevertheless, there was some evidence to suggest that he was. I add in parenthesis that in relation to count 1 Mr. Fung positively refused the gift and it is not averred by the applicant it was otherwise.

13. In his testimony, as I understand it, Mr. Fung protested his own innocence throughout. In these circumstances it seems to me that the provisions of s.22 of the Prevention of Bribery Ordinance are very relevant and, as I see it at the moment, it eliminates the possibility that Mr. Fung could be regarded as an accomplice. In my judgment therefore this point fails.

14. (3) The third ground of appeal relates to the fifth count and it is formulated in these terms. "Whether the judge was right to admit evidence of a conversation between two prosecution witnesses which did not happen in the presence and hearing of the applicant but which could be construed to implicate him in the offence in count 5". As I understand it, the conversation was helpful to establish the applicant's case without his needing to go into the witness box. The evidence tended to discredit Ko's evidence that $100,000 was offered to Mr. Cheung as a bribe. At present I cannot see how that evidence, which was adduced in evidence without objection by the defence, could be said to prejudice the fair trial of the matter before the jury. In my judgment this point fails.

15. (4) The fourth ground of appeal deals with the judge's direction concerning the effect of the testimony of the witnesses under immunity. The question in essence is whether the judge had sufficiently told the jury of the danger of those tainted witnesses repeating lies which they had previously told to the ICAC, rather than telling the truth. The judge's direction was in these terms.

"It was in their interests, therefore, to give evidence which they would think the prosecution would think was true. That is a factor which you ought to bear in mind when considering whether they were truthful when they gave their evidence."