HKSAR v. MAN KIN WING AND ANOTHER

HCMA 173/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 173 OF 2000

(ON APPEAL FROM ESCC 2848 OF 1999)

____________

_______________

J U D G M E N T

_______________

1. The Appellants were convicted in the Magistracy of one count of Conspiracy to Offer an Advantage to an Agent, contrary to sections 9(2)(a) and 12(1) of the Prevention of Bribery Ordinance, Cap. 201 and sections 159A and 159C of the Crimes Ordinance, Cap. 200. The particulars of the offence stated that on 2 December 1998, they conspired together, without lawful authority or reasonable excuse, to offer an advantage, namely, a gift, loan, fee, reward or commission consisting of a sum of $2,800.00 Hong Kong currency to Yeoh Kar Min, an employee of Cathay Pacific Airways Limited, as an inducement to or reward for or otherwise on account of Yeoh Kar Min doing or having done an act or acts in relation to her principal's business, namely, procuring or causing generally Cathay Pacific Airways Limited to issue concessional travel tickets in favour of Man Kin Wing (the 1st Appellant). They were sentenced to 3 months' imprisonment for this offence.

2. The original grounds of appeal were against sentence only, but leave was sought, and granted on 30 May 2000, to appeal against conviction out of time. The basis of that appeal was that the pleas of guilty by the Appellants were nullities and on the Summary of Facts, which they had admitted before the Magistrate, neither Appellant could in law be convicted of the offence with which he was charged, because the issuing of concessional tickets to the 1st Appellant was not an act in relation to Yeoh Kar Min's principal's affairs or business, which was a required ingredient of the offence under section 9(2)(a).

3. It is quite clear from the record, that in the Magistracy these Appellants made unequivocal pleas of guilty and also admitted the facts. The facts were very simple and set out clearly the elements of the offence. There is no question in my mind but that the Magistrate correctly convicted on the basis of the Summary of Facts.

4. Mr Lee, for the Appellants, put forward various convoluted, but unconvincing, submissions in an endeavour to show that a charge under section 9 could not be made out as absent any specific contractual arrangement, Miss Yeoh Kar Min was not an agent of her employer Cathay Pacific and the issuing of concessional tickets had nothing to do with her principal's affairs or business. Those submissions were not supported by any of the authorities to which I was referred.

5. I agree with the Respondent's submission that the words "in relation to his principal's affairs or business" should not be interpreted as "in his capacity as an agent". Rather an act "in relation to the principal's affairs or business" must be one aimed at the principal, in that it is intended to influence or affect the principal's affairs. (Commissioner of the ICAC v. Cheng Poh [1997] HKLRD 652 @ 657D-E).

6. The Summary of Facts, on the basis of which the Appellants pleaded, leaves no room to doubt that Miss Yeoh, as an employee, was acting in relation to her principal's business by nominating the 1st Appellant as the recipient of concessional air fares and accepting a reward for so doing.

7. It is only if I find that the charge was a nullity that an appeal against conviction under section 113 of the Magistrate's Ordinance can proceed. I referred to HKSAR v. Wong Chi Yuk MA 381 of 1999, where the Court of Appeal examined carefully the circumstances under which a charge was, or could be treated as, a nullity. Having considered that authority, I am quite satisfied that none of the circumstances there set out, applies to this case. I dismiss these appeals against conviction.

8. In respect of the appeal against sentence, the Magistrate correctly took into account the fact that almost invariably, a custodial sentence is required in a case such as this. He was aware of the sentencing guidelines; he took note of the personal particulars relating to each of the Appellants and he sentenced them to 3 months' imprisonment. Nothing urged on me by Mr Lee today indicates that the sentences are wrong in principle or manifestly excessive, and accordingly, each appeal against sentence is dismissed also.