ATTORNEY GENERAL v. LAM SAU-KI

Headnote

Section 4 Prevention of Bribery Ordinance: application of the Leonard test Kong Kam Piu[1973] HKLR 120; case stated: preparation: AG v Leung Chi Kin (1974) HKLR 269.

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J U D G M E N T

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Silke V.-P.:

1. This is the judgment of the Court.

2. The respondent appeared before Her Honour Judge C.B. Chan on 15 charges of accepting an advantage contrary to section 4(2)(a) of the Prevention of Bribery Ordinance, Cap. 201, and pleaded not guilty. The learned judge ruled that the respondent had no case to answer and acquitted him of 13 of the 15 charges, the Crown having conceded that there was no evidence against him on the three remaining charges.

3. The Attorney General now appeals by way of Case Stated invoking the provisions of s. 84 of the District Court Ordinance.

4. The two questions of law for this Court, contained in the Case stated by the judge, wrongly entitled "Case Stated by the Attorney General", are:

(i)    Did I err in law in the manner in which I applied the test for deciding the corruptness of the gifts accepted by the Respondent?

(ii)   Did I err in law holding that there was no case to answer?

5. The prosecution case against the respondent was that he, being a public servant - particularised as a Maintenance Surveyor of the Housing Department - gained access to advance information of the issue of Dangerous Buildings Orders under s. 26 of the Buildings Ordinance, Cap. 123. This he obtained from the Buildings and Lands Department after his transfer from that Department to the Housing Department. It was alleged that he subsequently on numerous occasions supplied this advance information to Fan Sik-chuen and Liu Sau-ming for advantage. We assume, though this does not appear in the body of the case, the drafting of which leaves a lot to be desired, that the advantage was cash. Those who present a draft for the consideration of a judge should bear in mind the advice given by Huggins J. (as he then was) in AG v Leung Chi Kin [1974] HKLR 269.

6. The respondent was a Maintenance Surveyor in the Housing Department on the 14th February 1987. On the 31st November 1987 he was transferred to the Buildings and Lands Department as a Building Surveyor and he worked there until the 30th June 1988. On the 1st July 1988 he was transferred back to the Housing Department.

7. Section 26(1) of the Buildings Ordinance provides that where, in the opinion of the Building Authority, any building has been rendered dangerous or liable to become dangerous, the Building Authority may, by order in writing served on the owner, declare such building to be dangerous or liable to become dangerous. By s-s. (2) such order may require the demolition of the whole or part of the building; require that the building be made safe generally; or require and specify work which must be done to make it safe or any other safety measures which should be taken. Advance notice of the issuance of such orders would be to the advantage of a building contractor who could become the first in line to ask for the work.

8. According to the evidence of Mr. Kwok Yiu-chung, the Chief Building Surveyor of the Buildings and Lands Department, information regarding service of orders under s. 26 is neither confidential nor secret and is kept to promote academic research. As such it would be available to any architectural student whether he is a public servant or not. Indeed the Building Surveyor or his assistant could give it to any member of the public who had an interest in it or had good enough cause for obtaining it.

9. Mr. Kwok said that about two months after the respondent had left his Department he asked Mr. Kwok for information about dangerous buildings as he was making research in connection with a course of study. Mr. Kwok told the respondent that since he had been working in the Dangerous Building Section of his Department for some time it was in order for him to obtain the relevant information for his research. Mr. Kwok considered that the request was quite normal.

10. Another officer of the same Department, Mr. Chow Chung-kwong, said the respondent had told him that he intended to write a book and hoped to compile some statistics which required up-to-date information about Dangerous Buildings Orders, such as when and where these would be issued. The respondent asked for repair notices, the addresses concerned and the suggested dates of issue. Mr. Chow found the respondent's request "very ordinary". Mr. Chow later gave the respondent "ten odd addresses and suggested dates of issue" of orders. Mr. Chow continued:

"I would certainly not have given the information to Mr. Lam if he would give this information to a third party for an illegal purpose."

11. The information was simply supplied as a friend to enable the respondent to write his dissertation.

12. Mr. Fan Sik-chuen also gave evidence. Mr. Fan first met the respondent when the latter was working in the Buildings and Lands Department and was conducting a survey on one of Mr. Fan's projects. At the time Mr. Fan was a foreman with a construction company. Later the respondent told Mr. Fan he was about to be transferred to another Department and would be able to get information about repair works for buildings. This, as we have indicated, he then did.

13. Subsection (2) of section 4 of the Prevention of Bribery Ordinance reads, as far as is material:

"(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 therwise 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) ................

(c) ................

    shall be guilty of an offence."

14. In her ruling that the respondent had no case to answer, the judge relied on the test formulated by Leonard, J. (as he then was) in Kong Kam-piu v. The Queen [1973] HKLR 120 (at 129):

"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 perform or abstain from performing an act in the capacity of a public servant 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 public servant and is a corrupt one."

15. The trial judge posed this question to herself:

"Would that gift have been given or could it have been effectively solicited if the' Defendant had left the civil service and had not remained as a civil Servant at the date of commission of the offence but prior to the date of the offence had worked as a Building Surveyor in the Dangerous Buildings Section of the Buildings & Lands Department?"

16. Her answer was: "Highly likely.

17. Having reviewed the evidence, the judge said:

"There was no clear or direct evidence from them that the advance information was given to the Defendant by virtue of the Defendant's position of employment as a maintenance surveyor of the Housing Department as particularised in the Charge. Nor could that be inferred from the Crown evidence adduced."

18. The learned judge concluded that the evidence adduced did not support a prima facie case that the advance information supplied was an act performed in the respondent's capacity as a Maintenance Surveyor of the Housing Department.

19. In considering the respondents actions, it is pertinent to refer to the concluding words of Leonard, J. in Kong Kam-piu (at 130):

"I have however no doubt ... that 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."

20. The test laid down by Leonard, J. was approved by the Judicial Committee of the Privy Council in The Attorney General of Hong Kong v. To Chiu [1980] HKLR 11. There Lord Edmund-Davies, having recited the full passage from the judgment of Leonard, J. at p. 129 in Kong Kam-piu which begins with the words "Here the vital words are 'in his capacity as a public servant'", said this at p. 16:

"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). Accordingly, the observations of Lord Simonds in Gill v. The King, Privy Council 128, to which their Lordships' attention was drawn, regarding "any act done or purporting to be done in the execution of his duty as a servant of the Crown" (wording employed in section 270 of the Government of India Act 1935) have no bearing on the interpretation of section 4(2)(a)."

The opinion of the Board went on at p. 17:

"... 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."

21. This appears to be a very narrow interpretation but it is nevertheless one by which we are bound.

22. The matter might also here be tested by adapting to the facts of the present case Leonard J's observations concerning the mischief at which the Ordinance is aimed and bearing in mind that which was said in Ip Chiu. in referring to that mischief Leonard J. was concerned, because of the facts of that case, with what might be termed the negative as aspect of section 4(2) (a), namely abstention from performing an act. However, the sub-section has a positive aspect; it also aims at the mischief of a public servant accepting an advantage (which includes a gift) for performing an act for the benefit of the member of the public concerned whether or not the public servant be entitled virtute officii to perform that act, provided of course that the benefit sought to be conferred in return for the advantage could not, with equal ease, have been conferred by the public servant had he not been a public servant.

23. On the evidence before the judge it was clear that, although not every member of the public, not a public servant, would have been able to confer that benefit, anyone, whether he be a public servant or not, would have been capable of doing so provided that he had been in a position to persuade a Building Surveyor of the Buildings and Lands Department to give him the information (the benefit conferred) so that, for example, he could pursue a course of study.

24. The information which the respondent obtained as a result of his false representation and the giving of it to Mr. Fan was, on the evidence and applying the Leonard test, not done in his capacity as a public servant whatever the description of his office in the charge might have been.

25. We would answer both questions posed in the negative.