公職人員行為失當的高級警司冼錦華上訴敗訴

2003/11/19

( 星 島 日 報 報 道 ) 高 級 警 司 冼 錦 華 被 控 行 為 失 當 案 ， 其 中 一 名 妓 女 供 詞 透 露 除 服 侍 冼 錦 華 外 ， 還 在 女 被 告 安 排 下 ， 曾 經 向 女 被 告 丈 夫 的 警 隊 同 僚 提 供 性 服 務 。 其 他 證 供 指 冼 錦 華 與 女 被 告 和 妓 女 共 進 晚 飯 的 菜 式 有 鮑 魚 及 魚 翅 等 ， 由 女 被 告 結 帳 。

停 職 高 級 警 司 冼 錦 華 （ 四 十 歲 ） 被 控 行 為 失 當 案 ， 昨 日 續 審 。 首 名 妓 女 證 人 「 恒 恒 」 作 供 完 結 後 ， 控 辯 雙 方 達 成 協 議 ， 只 在 庭 上 讀 出 其 他 四 名 妓 女 的 書 面 供 詞 內 容 。 其 中 妓 女 Ruby 在 供 詞 中 披 露 ， 姓 冼 客 人 享 受 「 一 皇 二 后 」 服 務 時 ， 不 知 何 解 「 久 久 不 能 完 事 」 ， 但 沒 有 要 求 特 殊 服 務 。 她 形 容 冼 的 身 材 很 紮 實 ， 年 約 四 十 多 歲 ， 約 六 呎 高 ， 平 頭 髮 型 。 而 妓 女 June 則 在 供 詞 中 描 述 冼 的 皮 膚 有 如 甘 國 亮 般 粗 糙 ， 冼 在 十 五 分 鐘 後 便 完 事 。

Ruby 在 書 面 供 詞 中 更 披 露 她 在 服 務 冼 後 ， 婉 華 姐 （ 即 女 被 告 林 春 葉 ） 更 有 一 、 兩 次  她 及 「 恒 恒 」 ， 及 帶 數 名 屬 於 其 他 場 的 女 公 關 一 起 到 華 姐 經 營 的 「 金 儷 軒 卡 拉 OK 」 ， 招 呼 華 姐 丈 夫 在 警 隊 的 其 他 同 僚 ， 陪 飲 、 陪 唱 及 陪 跳 舞 ， 由 華 姐 出 資 買 魚 生 及 壽 司 回 來 吃 ， 晚 飯 後 她 們 亦 要 向 客 人 提 供 性 服 務 。 至 於 酬 勞 亦 如 像 冼 的 一 樣 ， 事 後 向 華 姐 或 媽 媽 生 取 回 。

Ruby 供 詞 亦 披 露 ， 每 次 招 呼 警 務 人 員 ， 華 姐 及 丈 夫 均 有 在 場 ， 而 該 等 警 務 人 員 年 約 四 十 至 五 十 歲 ， 其 中 一 個 略 胖 。

控 方 昨 亦 讀 出 海 逸 酒 店 中 餐 廳 副 經 理 范 德 強 的 證 供 ， 揭 露 冼 錦 華 於 第 三 次 享 用 免 費 性 服 務 前 ， 在 酒 店 的 海 逸 軒 中 餐 廳 晚 膳 。

唯 一 出 庭 作 供 的 妓 女 「 恒 恒 」 昨 續 透 露 ， 二 ○ ○ 一 年 三 月 二 日 ， 她 依 從 婉 華 （ 即 女 被 告 ） 吩 咐 到 海 逸 酒 店 與 Ruby 一 起 服 侍 冼 錦 華 之 前 ， 曾 在 酒 店 中 餐 廳 晚 膳 ， 席 間 共 有 六 人 ， 進 食 貴 價 海 鮮 ， 包 括 鮑 魚 湯 ， 婉 華 更 取 出 雪 茄 、 紅 酒 及 白 酒 讓 大 家 享 用 。

由 於 她 知 道 婉 華 的 丈 夫 是 警 務 人 員 ， 從 各 人 對 話 亦 知 道 在 場 客 人 亦 應 該 是 警 隊 中 人 ， 且 婉 華 及 其 丈 夫 對 客 人 冼 錦 華 十 分 禮 貌 及 尊 敬 ， 故 她 相 信 冼 必 是 警 隊 高 層 人 員 。

「 恒 恒 」 續 稱 她 和 Ruby 先 上 房 沖 涼 ， 稍 後 冼 進 房 亦 有 洗 澡 ， 後 冼 與 二 人 均 發 生 性 交 。 完 事 後 ， 冼 打 了 一 個 電 話 便 離 開 ， 期 間 冼 沒 有 主 動 付 款 ， 她 二 人 亦 沒 有 索 款 。 她 返 回 夜 巴 黎 卡 拉 OK 後 ， 婉 華  她 向 媽 媽 生 取 服 務 費 三 千 元 ， 她 退 回 三 百 元 給 媽 媽 生 作 佣 金 。

由 於 辯 方 資 深 大 律 師 蘇 朗 年 對 妓 女 的 證 供 沒 有 爭 議 ， 故 高 級 助 理 刑 事 檢 控 專 員 薛 偉 成 ， 昨 在 庭 上 讀 出 與 冼 錦 華 交 歡 的 另 三 名 妓 女 Ruby 、 Minnie 及 June 及 未 獲 冼 看 中 的 另 一 妓 女 Fion 的 書 面 證 供 。

案 件 編 號 ﹕ 區 域 法 院 五 七 九 — — 二 ○ ○ 三 。

停職高級警司冼錦華被控行為失當案，昨天主審法官裁定他一項身為公職人員收受一盒價值三千元雪茄表面證據不成立，將控罪撤銷﹔但另三項涉及免費享用性服務行為失當罪則表證成立，案件延至今日待控辯雙方作結案陳詞。

　　冼錦華和同案女被告林春葉，均決定不自辯。辯方昨天陳詞指冼錦華召妓純屬其私生活，不應因他為警務人員而受歧視，這是違反《人權法》中的法律面前人人平等的原則。

　　辛達誠法官指出﹕去年五月十六日，女被告林春葉手攜紙袋進入海逸酒店的中菜廳，但案中並沒有證供證明當時袋中有甚麼物品。雖然妓女June的書面證供表示，當日晚膳時，飯桌上確有一盒雪茄，但控方並沒有證據指出該盒雪茄的來源，故不足以證明冼錦華是從林春葉手中取得該盒雪茄禮物的，故此裁定冼錦華身為公職人員收受利益表證不成立。

　　但其餘分別指控冼行為失當、林控制妓女賣淫和行賄等九罪，法官認為表面證據成立，下令二人須對有關控罪答辯。

　　辯方資深大律師蘇朗年昨天陳詞時，引用前總產業經理岑國社濫批價值一億五千萬元物業管理合約予親戚公司承包的案例，表明公職人員只要蓄意作出一些與公職有關的行為又危害公眾利益，毋須包含貪污或不誠實的元素，已能構成行為失當罪行。但本案控方沒有任何證據，指證冼沒付性服務費，或安排召妓後對女被告作出回報。

　　事實上各妓女最終均從媽媽生處取得費用，絕非控方所指享受免費性服務。

　　大律師又稱﹕而且冼錦華每次均在公眾場所，例如酒店中菜廳等地，與各妓女相見，當時妓女等均打扮斯文大方，冼並非出現在色情場所。

　　他指案發期間，冼錦華分別駐守「有組織罪案及三合會調查科」及「毒品調查科」，工作性質不涉及各警區內的罪案搜查，若控方要把冼錦華的召妓行為和其公職扯上關係，是完全被歪曲。

　　辯方又指，警隊內部守則並沒有指明警務人員不得召妓，冼錦華在本案中三度召妓，是屬於他的私人生活，與其職務無關。《人權法》第二十二章指明﹕在法律面前人人應獲平等對待，絕不能受到歧視。最重要一點是本港的現行法例，舉證責任是在控方，而非由被告負責舉證。

　　四十五歲被告冼錦華，於一九七六年取得文憑學歷，一九七七年一月加入警隊任職督察，去年十月取得工商管理碩士學位，女被告林春葉，四十二歲。

Convicted

【本報訊】高級警司冼錦華因享受免費妓女案，昨被法院裁定「公職人員行為不當」罪名成立，在區域法院被判入獄3年，令他成為歷來因行為失當罪名被判刑最重的公職人員。同案另一被告林春葉亦判監3年，兩人還押監房，等候保釋上訴申請。

　助理警務處長(人事)陳偉基為冼作品格證人時指出，冼服務期間屢破大案，包括歡場殺手的新三狼案。但法官說，冼錦華雖有立功，但功不抵過，加上他在警隊中是屬於高階層，同時負責有組織及嚴重罪行及掃毒，仍然犯上這樣嚴重的罪行，為了向警隊和公務員表示要有廉潔的信息，所以一定判他入獄。

助理處長陳偉基作品格證人

　法官辛達誠在判案時指出，每名警務人員及公務員，均應清楚知道一旦將自己陷入刑事勾當被定罪判監後，將會失去長俸，一切都是咎由自取，故法庭並不接納冼錦華將失去約370萬元的長俸作為求情因素。

　法官更引用高院前首席法官陳兆愷在一宗上訴案中所指，任何一個文明社會都不會容許有貪污罪行存在，貪污就像癌細胞一般，不斷蔓延，故需要立即清除。

　法官直斥冼錦華未有執行職務拘捕控制妓女賣淫的卡拉OK合夥人，更陷自己於貪污危機，在案中所嘗的「甜頭」，是其中一種潛伏著的貪污罪行，極難被人揭發，直至當對方要索取回報時，冼就人情難卻。

　法官強調作為執法人員或公務員，其品格操守必然受到公眾很高的期望，案中身為高級警司的冼錦華，擁有執法權力，應保障大眾市民有平等待遇，故判冼錦華3項行為失當罪名，入獄3年。

　法官指法庭並不相信女被告林春葉純為15年的友誼，而向冼提供免費妓女服務，林藉著向冼錦華提供「甜頭」，以籠絡對方日後滿足自己可能提出的要求，可以說比實際貪污罪行更加邪惡，而這種暗地裡進行的勾當亦令偵查的工作更加困難。

法官考慮林未剝削妓女

　現考慮案中涉及的妓女並無被剝削及欺壓，故判3項控制妓女罪名各囚1年，至於林面對的3項行賄罪行，雖無涉及金錢利益，但可能於他日向冼索取回報，令冼難以推卻，故判行賄罪入獄3年，各罪同期執行。

　辯方資深大律師蘇朗年求情指，45歲冼錦華的定罪，不但是本港警隊的損失，更是香港市民的損失，因冼錦華一直是警隊的典範，冼將失去長俸，被判監後在獄中更面臨危險，因冼過往偵破無數大案，有可能受到其他囚犯的威脅。

　辯方又指林春葉是燕京啤酒本港及澳門的代理商，旗下有200名僱員，若她被判入獄，其生意將面臨危機，而僱員亦會受到影響，故要求輕判。

【本報訊】加入警隊二十六年，原本前途似錦，官運亨通的高級警司冼錦華，由於縱情聲色，三度獲安排免費嫖妓，被裁定公職人員行為失當罪成；即使辯方昨日求情力指他屢破奇案，為警隊不可多得的人才，但法官完全不為所動，狠斥他自甘墮落，身為高級警官，不但疏忽職守，更干犯貪污罪行，重判冼錦華及夜總會女東主林春葉各入獄三年。　記者：柯弘毅

知法犯法的冼錦華（四十五歲），是歷來被法庭定罪的最高級華人警官，因好女色免費嫖妓淪為階下囚，更將會喪失高達五百萬元長俸。辯方資深大律師蘇朗年表示會替冼錦華及林春葉向高等法院申請保釋等候上訴。

冼錦華原被視為警隊明日之星，連區域法院法官辛達誠在判刑時亦感慨指他在警隊扶搖直上，位高權重，令人引以為傲，亦證明其過人才幹，要判處他實感難過。法官形容罪成令冼錦華喪失職位及長俸，對他及家人如同悲劇，但任何警員均知道此乃犯罪必然後果，冼錦華選擇犯罪一途，是咎由自取。

法官狠斥冼錦華接受免費嫖妓，等同姑息罪行，「真正罪惡的是你未能履行職責，還令自己置身貪污的危機。」法官引述前任高院首席法官陳兆愷的判詞，強調貪污罪行如同健康社會的癌症，影響深遠，在文明社會絕不容許。貪污必須及早消滅，否則星星之火可以燎原，後果堪虞。

法官指巿民有權獲得平等對待，而非有個別人受優待，法官指，「但你收受『甜頭』，一旦你無法抗拒這些貪污要求，整個社會都會受害。」故此法庭須明確表示，所有警務人員及公務員不可貪污，任何人加入警隊，必須達到公眾所預期的極高標準，不應沉淪於不良的個人行為。法官認為即使冼錦華在警隊中表現良好及出眾，但無減罪行的嚴重性，任何警員無論是否蓄意貪污或干犯牽涉貪污的罪行，無可避免判處監禁。法官指冼錦華在有組織罪行及三合會調查科以及毒品調查科身居要職，令罪行更加嚴重，判三項公職人員行為失當罪，各入獄三年，同期執行。

林春葉同判囚三年

至於女被告林春葉，法官形容她借免費召妓向冼錦華賣人情，打好利益基礎。法官表示，經營淫業的她向冼提供奢侈消遣及召妓服務，並非出於友情，而是為日後討回得益。法官指最邪惡的是林設計令冼錦華欠下人情，以便有需要時就向他提出要求。法官又指即使林現在沒有即時的金錢得益，但嚴重程度不能低估，因為預先給予好處，是最隱密的貪污罪行，難以偵察。公眾需要廉潔社會，此類罪行等同實質貪污，甚至更為嚴重，三項向政府人員提供利益罪判監三年，而社會視賣淫為罪惡，另三項控制他人賣淫罪判監一年，同期執行。

辯方昨日求情指冼錦華為完美警察，功績彪炳，他被定罪等同警隊被奪去一位最優秀的警官，巿民亦損失一位聰明、老練的警員。早於七六年在警察訓練學校結識冼錦華的助理警務處處長陳偉基出庭作品格證人，形容冼機智、勤奮及有才幹，破案無數，獲三次嘉許，兩次警隊長期服務獎章，更是警隊大使，代表出席國際會議，更獲日本警方發信讚揚他打擊東南亞區販毒罪行的貢獻，停職前三年被上級評為表現優異及出眾。

辯方另指林春葉其實主要業務是代理啤酒，經多年努力，成為燕京啤酒港澳總代理，僱用員工二百人。

案件編號： DCCC579/03

CFA McCoy SC Submission

中新網4月15日電据香港媒體報導，因免費嫖妓被裁定公職人員行為失當，一度入獄的前高級警司冼錦華和夜總會女老闆林春葉上訴終審法院案昨日開審。代表冼錦華的資深大律師麥高義對5名會審的終院法官指，冼錦華根本不知道這些投怀送抱的女子原來是妓女，還以為飛來艷福。

被判監3年，經上訴減刑至2年的冼錦華(46歲)，在獄中服刑1年後，去年12月初獲准以現金10萬元保釋外出，等候終審法院排期上訴。而林春葉(44歲)亦同樣獲准保釋，不用留守監房；而獲准保釋當日，冼、林的實際刑期只餘下4個多月。兩人昨日分別到達終審法院聽審，案件預料要審2日。

律師辯稱冼不知是妓女

資深大律師麥高義在庭上指出，冼錦華從不知道跟他上床的女子是妓女，也不曉得是林春葉提供給他享用，故此不能指冼嫖妓。終審法院法官李義對此大為詫異，質疑冼身為高級警務人員，到娛樂場所消遣，竟然分不清誰是妓女？

不過，麥高義續稱，控方充其量只能指冼錦華無直接付錢，但就不能說冼無付過錢，這方面的證據不足。對於林春葉被指控製女公關，要她們好好招呼冼。麥高義稱，那些女子根本不是林派來，也無控製或剝削她們。案中根本不存在受害人，全部是主動獻身跟冼歡好，何來免費嫖妓。

林春葉的代表大律師何駿亦稱，不少警員會到夜總會查牌，察看有無聘用未成年少女。冼錦華的職務不必介入查牌事宜，林春葉為何要用妓女服務賄賂他，找他幫忙？

主控官薛偉成則強烈反駁，指條例清楚寫明以公職人員身份享用免費性服務，而未經上級首肯都算犯法。他並指冼錦華明知夜總會女老闆提供利益，卻不予檢舉，還親自“享用”，原審區院和上訴庭的法官，也一致認為這是違法行為。

CFA

【2005年5月27日大紀元訊】終審法院昨日裁定被指免費嫖妓而被判公職人員行為失當的高級警司冼錦華上訴敗訴，同案的夜總會合夥人林春葉亦未能翻案，兩人即時繼續服刑。

終審法院5名法官一致駁回兩人的上訴。判詞指冼錦華身為高級警務人員，在有組織罪案及三合會調查科工作多年，雖然他表示當時並非值勤，但沒有理由不知道林春葉操縱妓女；而他先後3次接受由林春葉安排的妓女提供免費性服務，已經構成公職人員行為失當，冼錦華亦有可能給對方「甜頭」，兩人之間存有利益衝突。而根據案中妓女形容，林春葉是他們的老闆，包括定期支薪以及簽發支票等；而案中的妓女所收取的服務費，亦是由她或她的夜總會支付，亦足以證明她控制妓女賣淫。

案情指服務警隊26年、仕途如日中天的冼錦華，在01年3月至02年5月期間，接受林春葉安排的免費性服務，在03年裁定3項公職人員行為失當罪名成立，判入獄3年；而林春葉就被裁定3項操控他人賣淫及向公職人員提供利益罪名成立，亦判監3年。兩人經上訴後，獲減刑至兩年。在服刑1年後，他們獲准保釋等候上訴，現時尚有4個月的監禁刑期便刑滿出獄。◇

FACC No. 14 of 2004

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 14 OF 2004 (CRIMINAL)

(ON APPEAL FROM CACC NO. 520 OF 2003)

_____________________

Between :

        SIN KAM WAH

        LAM CHUEN IP

        1st Appellant

2nd Appellant

        and

       

        HKSAR

        Respondent

_____________________

Court :     Chief Justice Li, Mr Justice Bokhary PJ,

Mr Justice Chan PJ, Mr Justice Ribeiro PJ and

Sir Anthony Mason NPJ

Dates of Hearing :   14 and 15 April 2005

Date of Judgment : 26 May 2005

       

       

       

J U D G M E N T

       

               

Chief Justice Li :

I agree with the judgment of Sir Anthony Mason NPJ.

Mr Justice Bokhary PJ :

I agree with the judgment of Sir Anthony Mason NPJ. 

Mr Justice Chan PJ :

I agree with the judgment of Sir Anthony Mason NPJ. 

Mr Justice Ribeiro PJ :

I agree with the judgment of Sir Anthony Mason NPJ.

Sir Anthony Mason NPJ :

Introduction

On 28 November 2003, the 1st appellant, a Senior Superintendent of the Hong Kong Police Force, was tried before HH Judge Saunders in the District Court and convicted on three charges of misconduct in public office, contrary to common law.  He was sentenced to three years imprisonment on each charge, to run concurrently.

On the same day, in the same trial, the 2nd appellant, who had proprietary interests in four nightclubs in Kowloon and played a part in the activities of three of them at least, was convicted by HH Judge Saunders on three related charges of “exercising control over other persons with a view to their prostitution”, contrary to s.130(1)(b) of the Crimes Ordinance, Cap. 200.  The 2nd appellant was also convicted on that day by HH Judge Saunders on three charges of “offering an advantage to a Government servant”, contrary to s.8(1) of the Prevention of Bribery Ordinance, Cap. 201.  The charges on which the 2nd appellant was convicted arose out of the transactions and events which gave rise to the 1st appellant’s convictions.  The 2nd appellant was sentenced to one year imprisonment on each of the s.130(1)(b) charges, to be served concurrently, and three years imprisonment on each of the s.8(1) charges, to be served concurrently, all the sentences to be served concurrently, making a total sentence of three years’ imprisonment. 

The Court of Appeal (CACC 520/2003, 11 June 2004, Ma CJHC, Stuart-Moore VP and Lunn J) dismissed applications by both appellants for leave to appeal against their convictions.

The Court of Appeal granted leave to the 1st appellant to appeal against sentence, allowed the appeal and reduced the sentences for the three offences of misconduct in public office to 2 years for each offence, to be served concurrently.

The Court of Appeal granted leave to the 2nd appellant to appeal against sentence, allowed the appeal and reduced the sentences for the three offences under s.8(1) of the Prevention of Bribery Ordinance to two years for each offence, to be served concurrently.  It dismissed the 2nd appellant’s application for leave to appeal against sentence on the offences under s.130(1)(b) of the Crimes Ordinance.

The appellants now appeal, pursuant to the grant of leave by the Appeal Committee, against their convictions.  The Appeal Committee certified two questions of law of great and general importance, namely

whether a police officer commits the crime of misconduct in public office simply when someone provided him with the services, free of charge to him, of prostitutes and he accepts; and

whether the provider of such services commits the offence of offering an advantage to a public servant. 

The Appeal Committee also stated that the leave to appeal was granted on the ground of substantial and grave injustice. 

The charges against the 1st appellant

Each of the three charges (charges 1 to 3) were expressed as follows:

“Misconduct in public office, contrary to Common Law and punishable under section 101I(1) of the Criminal Procedure Ordinance, Cap. 221.”

Central to the 1st appellant’s argument in this appeal are the particulars given of the charges.  The 1st appellant argues that the case presented against him at trial on which he was convicted was outside the particulars of the charge.  The particulars given of the 1st charge were:

“SIN Kam-wah, being a public officer, namely a Senior Superintendent of the Hong Kong Police Force, on the 2nd day of March 2001, in Hong Kong, in the course of or in relation to his public office, willfully and intentionally culpably misconducted himself by accepting from LAM Chuen-ip the sexual services, free of any charge, of two women over whom he knew the said LAM Chuen-ip was exercising control, direction or influence for the purpose of or with a view to those said women’s prostitution.”

The particulars given of the 2nd and 3rd charges were identical save for the date and the reference in those charges to “one woman” instead of “two women”.  In the case of those charges the dates specified were 29 March 2001 and 16 May 2002 respectively. 

The charges against the 2nd appellant

Each of the three charges under s.130(1)(b) (charges 5 to 7) were expressed as follows:

“Exercising control over other persons with a view to their prostitution, contrary to section 130(1)(b) of the Crimes Ordinance, Cap. 200.”

The particulars given of the 5th charge were:

“Lam Chuen-ip, on the 2nd day of March 2001, in Hong Kong, exercised control, direction or influence over DINH Thi-tam and TSANG Yee-ling for the purpose of or with a view to those two persons’ prostitution.” 

The particulars given of the 6th charge were:

“Lam Chuen-ip, on the 29th day of March 2001, in Hong Kong, exercised control, direction or influence over LAM Wing-yan and YUK Sin-lung for the purpose of or with a view to those two persons’ prostitution.” 

The particulars given of the 7th charge were:

“Lam Chuen-ip, on the 16th day of May 2002, in Hong Kong, exercised control, direction or influence over WONG Pui-fun for the purpose of or with a view to her prostitution.” 

The three charges (charges 8 to 10) under s.8(1) were: 

“Offering an advantage to a Government servant, contrary to sections 8(1) and 12(1) of the Prevention of Bribery Ordinance, Cap. 201.” 

The particulars given of the 8th charge were:

“Lam Chuen-ip, on the 2nd day of March 2001, in Hong Kong, without lawful authority or reasonable excuse, whilst having dealings of any kind with the Government of the HKSAR through the Hong Kong Police Force, offered to SIN Kam-wah, a Senior Superintendent employed in the said Hong Kong Police Force, an advantage, namely a service or favour in the form of the free sexual services of two women.” 

The particulars given of the 9th and 10th charges were identical save for the date and the reference in those charges to “a woman” instead of “two women”.  In the case of those charges the dates specified were 29 March 2001 and 16 May 2002. 

The facts

The facts on which the charges were based, as established by the prosecution evidence, were stated by Ma CJHC in the judgment which he delivered for the Court of Appeal.  No evidence was called for the defence.  Subject to some variations, the recital of the facts which follows is largely taken from the judgment of Ma CJHC. 

The 1st appellant was, at the material time, a Senior Superintendent in the Hong Kong Police Force.  Between 12 April 1998 and 25 March 2001, he was attached to the Organized Crime and Triad Bureau (“OCTB”).  Between 2 April 2002 and 26 May 2002, he was attached to the Narcotics Bureau of the Hong Kong Police Force.

The 2nd appellant, as the trial judge found, had a beneficial interest in 4 nightclubs in the Tsim Sha Tsui area: the Paris By Night Karaoke Lounge, Caesar’s Empire Karaoke, Domus Club Lounge and Kushinobo.  There was also a link in the recorded shareholdings and directorships between these 4 clubs and a hotel known as the Dadol Hotel.  The 4 clubs were found by the judge to have the primary function of providing to their customers sexual services by hostesses who were prostitutes (although it may be at Kushinobo, that only men were made available). 

(a) 2 March 2001: charges 1, 5 and 8.

A few days before this date, at the Caesar’s Empire Karaoke, the 2nd appellant told 2 hostesses (whose “stage names” were Hang Hang and Ruby) that they would be required at some stage to have dinner with a customer and provide sexual services later.  They were told not to ask for nor accept money from this customer.  Any payment for their services would be made by the 2nd appellant. 

On 2 March 2001, the 2nd appellant reserved a VIP room at the Hoi Yat Heen Restaurant at the Harbour Plaza Hotel.  Ruby was told to go to the hotel (which she did together with the 2nd appellant), check into a room that had been pre-booked there and pay the room deposit. 

Later, Hang Hang joined them and the 3 of them went to dinner at the restaurant together with the 1st appellant, the 2nd appellant’s husband, who was an Inspector of Police, and another male person.  The table was reserved in the name of the 2nd appellant and she paid the bill.  This was a lavish dinner, it came to over $6,000 for 6 people.  The 2nd appellant paid the bill. 

During dinner, the 2nd appellant signalled to Hang Hang and Ruby to finish their dinner and go upstairs to the room at the hotel, where they waited for the 1st appellant.  The 1st appellant later joined them and had sex with them.  No payment was made by the 1st appellant to either Hang Hang or Ruby.

Afterwards, the 2 hostesses went to the Paris By Night Karaoke Lounge where they met the 2nd appellant.  The 2nd appellant told them to get the money from their mamasan.  Hang Hang said that she and her mamasan Amy went to the accounts office where she was paid $3,000 from which she gave $300 to Amy.  Ruby was paid by her mamasan.  She was not sure whether it was $2,000 or $3,000, of which her mamasan took 10%. 

Hang Hang gave evidence at the trial.  She was the only hostess who did, the others providing statements which were admitted under s.65B of the Criminal Procedure Ordinance, Cap. 221.  Hang Hang gave uncontradicted evidence of how she was instructed by the 2nd appellant on the day in question.  The other hostess, Ruby, provided statements confirming this.  In addition, Ruby said in her second statement that she was at first rather shocked that she should be required to have sex with a customer together with another girl.  She was unhappy about it and was unwilling to do it (she had never done this before and did not need the money) but as the 2nd appellant was her “boss” and she was “a woman holding sway”, Ruby did not want to offend her “since my work or other aspects might be affected” and went along with this arrangement.  When Ruby went up to the room with Hang Hang, she voiced to Hang Hang her discontent with the fee, but as the 2nd appellant was involved, “[we] dared not discuss the pay with her”. 

(b) 28 March 2001: charges 2, 6 and 9.

On this date, 2 other hostesses (whose “stage names” were Minnie and Fion) having been approached by the 2nd appellant at Caesar’s Empire Karaoke, were told that they would be required to accompany a customer that night and, if he wanted, to provide sexual services.

In the evening, the 1st appellant, the 2nd appellant, her husband, another police officer and the 2 girls met at Kushinobo.  Kushinobo’s business hours were usually between 11:30 p.m. and 8:00 a.m. but on that day, it was specially opened earlier, apparently at the request of the 2nd appellant.  $1,000 was given by the 2nd appellant to a staff member so that food could be purchased.  At some stage, the 2nd appellant told Minnie that the 1st appellant wanted to have sex with her.  Minnie was also told not to charge the 1st appellant for these services but to return to Caesar’s Empire to ask for the fee after finishing her work and the 2nd appellant would arrange for it.  Just before 11:00 p.m., Fion left Kushinobo by herself.  The 1st appellant and Minnie left soon afterwards and checked into the Dadol Hotel.  After an hour and after they had sex together, they left.  Minnie went to Caesar’s Empire Karaoke where she was paid the next day, either by the 2nd appellant or Minnie’s mamasan. 

        (c) 16 May 2002: charges 3, 7 and 10.

On the day before, the 2nd appellant approached a hostess called June at the Domus Club and asked her whether she was available for dinner and to be taken by a customer the following night.  June was told that if she was taken out, she need not ask the customer for money and she would be paid $2,000 when she came back to the “company” (the Domus Club).  The 2nd appellant said she would pay or leave the money with Fiona (the mamasan).  June understood this to mean that, if required, she was to provide sexual services to the customer concerned. 

In the afternoon of 16 may 2002, the 2nd appellant went to the Harbour Plaza Hotel, reserved a room in June’s name and paid the deposit for it.  She also reserved a table at the Hoi Yat Heen Restaurant on the 2nd Floor of the Hotel.  She later went with June to the Harbour Plaza Hotel.  At about 7:30 p.m., the 2nd appellant met the 1st appellant at the restaurant.  June joined them later.  Again, the meal was an expensive one.  The 2nd appellant paid the bill ($2995.30). 

During the meal, following a signal from the 2nd appellant, June left the restaurant and went up to the room that had been rented.  The 1st appellant later joined her and they had sex.  The next day, June was paid $2,000 by the mamasan. 

Ma CJHC made the following additional points in relation to the evidence:

Each act of having sexual relations by the 1st appellant involved an act of prostitution.  The 2nd appellant knew that the hostesses’ duties included this.

These activities were all arranged by the 2nd appellant and also paid for by her or on her behalf.  So were the meals and the rooms where the 1st appellant and the hostesses had sex.  There was no evidence, even a hint, that the 1st appellant paid either for the meals or, more importantly for the purposes of the charges he faced, for the hostesses.  The prosecution established that the hostesses were arranged and paid for by the 2nd appellant.  Nothing in the evidence suggested that the 1st appellant paid for any part of it.  The inference from the facts was clearly that he did not.  It was not necessary for the prosecution, as part of its burden of proof, to disprove matters which were wholly speculative.  As neither appellant gave evidence at trial, the case of Li Defan v. HKSAR (2002) 5 HKCFAR 320 was therefore relevant. 

The 2nd appellant was in a position of authority as regards the hostesses who participated in the events described above.  As already mentioned, one hostess, Ruby, described the 2nd appellant as a woman “holding sway” and it is clear from the facts that the 2nd appellant was in a position to request and instruct the hostesses to entertain customers.  This was perhaps hardly surprising given the 2nd appellant’s significant interests in the relevant clubs (see paragraph 22 above). 

The modus operandi of the clubs, the hostesses and the Dadol Hotel was explained by the trial judge in paras 14 and 15 of his judgment.  His Honour said:

“All five hostesses said that as part of their duties they were employed a(s) sex workers.  They were given a number and allocated to a mamasan who acted in the capacity of a manager of a group of hostesses.  The club charged for their time with a customer in the club and if a customer wished to take them out for dinner or sex the club charged the customer for that time.  The hostess charged the customer for sex services and on returning to the club paid a percentage of that sum to the mamasan to which they were assigned.  The customer could, if they wished, pay for sexual services by credit card to the club, with the hostess collecting her share, and paying the cut to the mamasan on return to the club. 

Evidence from a clerk at the Dadol Hotel (PW5, Ex P43A), established that arrangements had been made between three of the clubs, Paris by Night, Domus Club, and Caesar’s Empire Karaoke that when a hostesses from those clubs took a customer to the hotel for sex services the hostess would give her hostess number to the hotel, which checked with the club to confirm the number, and the room charge was made to the club, who had paid, on a monthly basis, in advance, for the rooms.  Kushinobo apparently usually caters for a female clientele and has male hosts and has not made a similar arrangement.” 

The decision of the trial judge (HH Judge Saunders)

The judge dealt, first, with the three charges against the 2nd appellant under s.130(1)(b).  He found that she arranged for the sexual activities in which, on the three occasions, the 1st appellant and the hostesses were engaged.  The hostesses were prostitutes and each sexual act was an act of prostitution.  In relation to the activities on 2 March 2001 and 16 May 2002 she arranged for and paid for the room in the Harbour Plaza Hotel.  The judge found that, having regard to her proprietary interest in the clubs and “her active management role in them”, she knew that, on 28 March 2001, the room charge at the Dadol Hotel would be met by Caesar’s Empire under the pre-pay arrangement with the club.  The judge also found that the 2nd appellant knew that the hostesses were prostitutes and that they were available for and would engage in acts of prostitution with the 1st appellant at her request. 

The judge went on to hold that the 2nd appellant was a person in authority over the five hostesses and that she was a person who exercised control, direction or influence over them.  Consequently he convicted the 2nd appellant on the 5th, 6th and 7th charges. 

The judge then dealt with the three charges against the 1st appellant.  The issues between the prosecution and the 1st appellant were: (1) whether the conduct complained of was conduct that was in the course of or in relation to the 1st appellant’s public office; (2) whether the conduct was serious and culpable; (3) whether the sexual services were given free of charge; and (4) whether the 1st appellant knew that the 2nd appellant was exercising control over the prostitutes. 

On the 1st issue, HH Judge Saunders found, having regard to ss 3 and 10 of the Police Force Ordinance, Cap. 232, the 1st appellant was under a duty to arrest the 2nd appellant for the offences under s.130(1)(b) and that, accordingly, he was acting in the course of and in relation to his public office.  On the 2nd issue, His Honour’s conclusion was, having regard to the gravity of an offence under s.130(1)(b), the 1st appellant’s conduct was culpable and serious. 

On the 3rd issue, His Honour found that, in the circumstances, the inference that the 1st appellant did not pay for the sexual services he received was overwhelming. 

On the 4th issue, the judge’s finding was that, in the light of the circumstances and the 1st appellant’s knowledge of the vice industry, the inference that he knew that the 2nd appellant exercised control, direction or influence over the prostitutes was also overwhelming. 

Accordingly, the learned judge found that the prosecution had established all the elements of the offence, namely that, being at all times a senior police officer, he had accepted the sexual favours bestowed on him by the 2nd appellant, that the favours were provided and accepted by him in relation to his office, the services being of substantial value.  His Honour went on, however, to find that the sexual services were provided as a general “sweetener”.  In this respect the judge said:

“This case raises elements of corruption.  The 1st Accused, as a Senior Superintendent in OCTB, was in command of one of the departments of the Police Force tasked to investigate the very offences in which he has taken part.  Vice offences, involving as they do organised crime and triads, are without doubt part of the ambit of OCTB.  By accepting the advantages of free sexual services 1st Accused allowed the 2nd Accused to ingratiate herself to him.  The 1st Accused thereby exposed himself to the risk that in return for that free sexual service he may at some time in the future be asked to intervene in matters relating to the 2nd Accused or the clubs.  It is the clearest of cases of ‘keeping sweet’ corruption where advantages are given to someone in authority, without asking for a quid pro quo at the time the advantage is given, but building a store of goodwill to provide a basis for future corrupt demands.” 

With respect to the three bribery charges against the 2nd appellant, it was not in dispute that she had offered an advantage, namely sexual services, to a prescribed officer (the 1st appellant) and that there was an absence of lawful authority or excuse for so doing.  The critical issue was whether, at the time of the s.130(1)(b) offences, she was having dealings of any kind with the Government through any department, office or establishments. 

The judge found that, during the period between 1 January 2001 and 31 December 2002, there were 19 police checks of Caesar’s Empire, 18 police checks of Paris by Night, 14 police checks of Domus Club and 7 police checks of Kushinobo.  The establishments in which the 2nd appellant had a financial interest were required to hold licences for both liquor and entertainment purposes and these licences were subject to annual renewal.  Annual renewal is dependent on a police report which follows random police checks relating to licence conditions, crimes of violence, dangerous drugs and vice activities.  The continuous regime of checks was, so the judge held, enough to constitute dealings between the 2nd appellant and the Government through a department, office or establishment of the Government within s.8(1) of the Prevention of Bribery Ordinance.  The 2nd appellant was convicted of the three charges. 

At the time of the March offences, the 1st appellant was attached to OCTB and, in that month, he was transferred to the Narcotics Bureau.  The judge found that vice offences, Tsim Sha Tsui being a centre of vice activity, were within the ambit of OCTB responsibilities.  After he left OCTB, the 1st appellant, so the judge found, remained a senior officer with influence and contacts in the Police Force which had been built up over many years and was able to influence the 2nd appellant’s dealings with the Police Force. 

The Court of Appeal

The Court of Appeal concluded that the 1st appellant’s convictions should be upheld on the ground that he was guilty of misconduct in public office by accepting a “general sweetener” – what the trial judge described as “keeping sweet” corruption.  The Court rejected, however, the trial judge’s holding that, by failing to arrest the 2nd appellant or prevent a crime (the s.130(1)(b) offence), the 1st appellant was guilty of misconduct in public office.  The Court considered that this case was not particularized (which is correct) nor was the case opened on this basis (which is also correct).  In any event, the Court considered that it was artificial to put the case on this basis when the offence would not have occurred but for him. 

The Court said nothing explicitly about accepting or rejecting the charges as particularized, that is, accepting free sexual services from women, knowing that they were women over whom the 2nd appellant exercising control, direction or influence.  Yet the way in which the Court dealt with the arrest and prevention of crime question indicates that the Court considered that the 1st appellant was aware that the 2nd appellant was exercising control, direction or influence over the hostesses for the purposes of, or with a view to, prostitution. 

With respect to the bribery charges, the Court rejected the argument that s.8(1), on its true construction, required the dealings with Government to be in existence at the time of the commission of the offence charged.  Likewise, the Court rejected an argument that the sub-section requires that the donee of the advantage be in a position to influence the dealings which the donor has with the relevant Government department.  Accordingly, the convictions were upheld. 

The 1st appellant’s case

Mr Gerard McCoy SC for the 1st appellant submits that

the convictions were based on hearsay evidence;

the evidence does not negate the possibility that the 1st appellant paid for the sexual services that he received;

the evidence does not establish that the 1st appellant knew that the 2nd appellant was exercising control, direction or influence over the 5 hostesses;

the convictions could not be sustained on the basis that the sexual services were provided as a “general sweetener” because that basis of misconduct had neither been particularized nor opened to the trial judge; and

the judge misdirected himself in law when he said that the 1st appellant had turned a blind eye to the offence committed by the 2nd appellant under s.130(1)(b) because the judge was proceeding on a view of “recklessness” which can no longer be supported in the light of the House of Lords decision in R v. G [2004] 1 AC 1034 which departed from Reg v. Caldwell [1982] AC 341. 

Recklessness and misconduct in public office

It is convenient to consider, first, the 1st appellant’s 5th submission.  It proceeds on the assumption that the judge’s reference to the 1st appellant’s turning a blind eye to the commission of the offence under s.130(1)(b) indicated a finding of reckless misconduct on the part of the 1st appellant.  That is not a correct reading of the judgment.  The references in the judgment, correctly understood, assert that there was a wilful or deliberate turning of a blind eye to the consequences of the conduct engaged in. 

Although the submission must be rejected for the reason just stated, it is desirable to consider the consequences for the law of Hong Kong of the decision in R v. G.  Hitherto the Courts of Hong Kong have followed Reg v. Caldwell.  In R v. Chau Ming Cheong [1983] HKC 68, the Court of Appeal followed Caldwell and R v. Lawrence [1982] AC 510, taking the principle to be that stated by Lord Diplock in Lawrence at 526EG as summarized in Archbold 41st ed. paras 17-25, p.1008 as follows: 

“Recklessness on the part of the doer of an act presupposes that there is something in the circumstances that would have drawn the attention of an ordinary prudent individual to the possibility that his act was capable of causing the kind of serious harmful consequences that the section that created the offence was intended to prevent and that the risk of those harmful consequences occurring was not so slight that an ordinary prudent individual would feel justified in treating them as negligible.  It is only when this is so that the doer of the act is acting ‘recklessly’ if, before doing the act, he either fails to give any thought to the possibility of there being such risk or, having recognized that there was such a risk, he nevertheless goes on to do it.”

The same approach was taken in R v. Dung Shue Wah [1983] 2 HKC 30 where the Court of Appeal held that the word “reckless” in s.118(3)(a) of the Crimes Ordinance bore its commonsense meaning as stated in Caldwell and Lawrence.  The two decisions of the Court of Appeal reflect the current understanding of the law on recklessness in Hong Kong, this understanding being based on Caldwell and Lawrence. 

The view of recklessness adopted in Caldwell has been subjected to outspoken criticism not only by leading academic commentators, including Professor John Smith [1981] Crim LR 392 at 393-396 and Professor Glanville Williams in “Recklessness Redefined” [1981] CLJ 252, but also by leading judges and practitioners: see R v. G at 1056 AC, per Lord Bingham of Cornhill.  The principal point of the sustained criticism has been that the Caldwell view of recklessness ignored a fundamental principle of criminal culpability.  Lord Bingham expressed the point (at 1055CD) in this way:

“... it is a salutary principle that conviction of serious crime should depend on proof not simply that the defendant caused (by act or omission) an injurious result to another but that his state of mind when so acting was culpable ...  The most obviously culpable state of mind is no doubt an intention to cause the injurious result, but knowing disregard of an appreciated and unacceptable risk of causing an injurious result or a deliberate closing of the mind to such risk would be readily accepted as culpable also.  It is clearly blameworthy to take an obvious and significant risk of causing injury to another.  But it is not clearly blameworthy to do something involving a risk of injury to another if ... one genuinely does not perceive the risk.  Such a person may fairly be accused of stupidity or lack of imagination, but neither of those failings should expose him to conviction of serious crime or the risk of punishment.” 

Another serious point of criticism was that the model direction formulated by Lord Diplock was capable of leading to obvious unfairness, as it did at trial in R v. G, because it could lead to the unjust conviction of a defendant on the strength of what someone else would have apprehended, although the defendant himself had no such apprehension; see R v. G at 1055EG. 

Because these criticisms are soundly based, it is appropriate that this Court should take this opportunity of overruling R v. Chau Ming Cheong and R v. Dung Shue Wah.  Henceforth juries should be directed in terms of the subjective interpretation of recklessness upheld in R v. G.  So juries should be instructed that, in order to convict for an offence under s.118(3)(a) of the Crimes Ordinance, it has to be shown that the defendant’s state of mind was culpable in that he acted recklessly in respect of a circumstance if he was aware of a risk which did or would exist, or in respect of a result if he was aware of a risk that it would occur, and it was, in the circumstances known to him, unreasonable to take the risk.  Conversely, a defendant could not be regarded as culpable so as to be convicted of the offence if, due to his age or personal characteristics, he genuinely did not appreciate or foresee the risks involved in his actions. 

Since this Court delivered judgment in Shum Kwok Sher v. HKSAR (2002) 5 HKCFAR 381, the English Court of Appeal, in Attorney-General’s Reference (No. 3 of 2003) [2004] 2 Cr App R 23, has considered the elements of the offence of misconduct in public office.  In that case, the Court of Appeal took account of the decision in R v. G in considering the relationship between recklessness and wilful misconduct, as well as the judgments in Shum Kwok Sher.  In the light of the detailed consideration of the problem in Attorney-General’s Reference (No. 3 of 2003), I would re-formulate the elements of the offence, as stated in Shum Kwok Sher at 409, as follows.  The offence is committed where:

(1)    a public official;

(2)    in the course of or in relation to his public office;

(3)    wilfully misconducts himself; by act or omission, for example, by wilfully neglecting or failing to perform his duty;

(4)    without reasonable excuse or justification; and

(5)    where such misconduct is serious, not trivial, having regard to the responsibilities of the office and the officeholder, the importance of the public objects which they serve and the nature and extent of the departure from those responsibilities.

The misconduct must be deliberate rather than accidental in the sense that the official either knew that his conduct was unlawful or wilfully disregarded the risk that his conduct was unlawful.  Wilful misconduct which is without reasonable excuse or justification is culpable.

The scope of misconduct in public office

As it was argued in the courts below that the conduct complained of was not in the course of or in relation to the 1st appellant’s public office and was neither culpable nor serious, it is appropriate to say something about these matters.  To constitute the offence of misconduct in public office, wilful misconduct which has a relevant relationship with the defendant’s public office is enough.  Thus, misconduct otherwise than in the performance of the defendant’s public duties may nevertheless have such a relationship with his public office as to bring that office into disrepute, in circumstances where the misconduct is both culpable and serious and not trivial.  In the present case, if the charges as particularized are made out, there can be no doubt that the misconduct had the necessary relationship with the 1st appellant’s public office and that it was culpable and serious because it involved his participation in the acceptance of free sexual services with the knowledge that they were provided by prostitutes over whom the 2nd appellant exercised control, direction or influence, that being a serious criminal offence. 

In order to reach this conclusion, it is unnecessary to call in aid s.21 of the Police Force Ordinance.  This section provides:

“Every police officer shall for the purposes of this Ordinance be deemed to be always on duty when required to act as such and shall perform the duties and exercise the powers granted to him under this Ordinance or any other law at any and every place in Hong Kong where he may be doing duty.”

I agree with the interpretation placed upon the section by the Court of Appeal, namely that it deems a police officer to be on duty when circumstances exist requiring him to exercise the powers he has as a police officer, for example, when he observes a crime being committed.  I share the Court of Appeal’s view that the application of this section was not an essential step in the prosecution case. 

Were the 1st appellant’s convictions based on hearsay evidence?

Although the evidence of the hostesses related to the arrangements which they had made with the 2nd appellant and the arrangements she had made for entertaining and providing sexual services for the 1st appellant, these arrangements were facts relevant to the proof of the offences charged.  The thrust of the evidence of the hostesses was admissible both in form and substance against the 1st appellant.  Moreover, there is nothing in the trial judge’s judgment to indicate that he relied on hearsay evidence in concluding that proof of the offences was made out. 

Did the evidence negate the possibility that the 1st appellant paid for the sexual services which he received? 

There was direct evidence from each of the hostesses that the 1st appellant did not pay them for the services which they rendered.  On the first occasion, one hostess was paid by the accounts office of the Paris By Night Karaoke Lounge, the other by her mamasan.  On the second occasion, the hostess was paid either by the 2nd appellant or the mamasan.  On the third occasion, that hostess was paid by her mamasan.  On each occasion, the hostesses were instructed by the 2nd appellant not to ask the 1st appellant for payment, nor to accept payment, if offered.  The hostess Hang Hang said that she was told to reply, if an offer of payment was made, that it was unnecessary, “as we were friends”.  Further, the 2nd appellant, not the mamasans, arranged for the hostesses to provide the services and for their payment, paid for the dinners, the food and for the hotel accommodation except for the Dadol Hotel where the room charge was made to the club under the arrangement made for payment in advance.

This body of evidence establishes convincingly that payment for the sexual services was made by the 2nd appellant or the clubs in which she had a financial interest.  There is nothing to suggest that the 2nd appellant was reimbursed by the 1st appellant.  Indeed, the evidence from the hostesses indicates that he was treated as an important and respected guest by the 2nd appellant and the hostesses.  The trial judge described the inference that the 1st appellant did not pay for the sexual services as “overwhelming”.  Even if this be an overstatement, the inference was a strong one. 

Did the evidence establish that the 1st appellant knew that the 2nd appellant exercised control, direction or influence over the hostesses?

Mr McCoy SC for the 1st appellant points to evidence from the hostesses that they were required by the 2nd appellant to dress properly, not use bad language, and to say that they were clerks, in order to support the suggestion that the 1st appellant did not know that they were prostitutes and may have thought that they were simply young women who wanted to have an entertaining night out.  Mr McCoy SC acknowledges, however, that this argument, if it has substance, can only apply to the first of the three occasions.  Even in relation to the first occasion, the argument is unconvincing.  It is evident that, in making arrangements on that occasion, the 2nd appellant was aware of the 1st appellant’s preference for having sexual relations with two women together, a preference which the 1st appellant would have known was much more likely to be satisfied by prostitutes than by two young women, who were not prostitutes, whom he met for the first time.  When he entered the VIP room in the Harbour Plaza Hotel, he must have known, if he did not know before, that the two hostesses present with him were prostitutes over whom the 2nd appellant exercised influence, if not control or direction, for she was the host and she had made the arrangements for them to participate in the evening’s entertainment and to wait for him in the room, having given them the signal when to go to the room.

The argument that the 1st appellant did not know they were prostitutes over whom the 2nd appellant exercised control, direction or influence invests the 1st appellant with an air of naiveté which is, to say the least, remarkable in a high-ranking police officer, particularly a high-ranking police officer with the experience which the 1st appellant had in dealing with organized crime and the vice industry.  As the judge pointed out, Tsim Sha Tsui, is itself a centre of vice activity.  There was ample evidence from which the judge properly drew the inference that the 1st appellant knew that the hostesses were prostitutes under the control, direction or influence of the 2nd appellant.

The prosecution case that the services was provided as a “general sweetener”

As already mentioned, misconduct based on the acceptance of a “general sweetener” was neither particularized nor opened to the trial judge.  Nonetheless, at the trial, no objection appears to have been taken to this way of presenting the prosecution case.  In any event, the trial judge found that there was wilful misconduct on the 1st appellant’s part by accepting sexual services from women over whom he knew the 2nd appellant was exercising control, direction or influence.  The convictions can be sustained on the basis of this finding, without relying the “general sweetener” basis for conviction.  I should make it clear, however, that acceptance of a “general sweetener” by a public officer can, in appropriate circumstances, amount to misconduct in public office. 

The offence against s.130(1)(b) of the Crimes Ordinance

The words “control, direction or influence” in this sub-section should be given their ordinary meaning and do not import any element of coercion (R v. Fong Yuk Choi [1983] 1 HKC 208).  There is nothing in the language or the purpose of the provision to support the notion that it is concerned only with persons who are not, at the time the offence is committed, prostitutes.  It is plainly aimed at a defendant whose influence over the persons concerned is in furtherance or by way of assistance of their present or future activities as prostitutes. 

Although it may be that the trial judge’s reference to the 2nd appellant as a “manager” of the clubs was not entirely accurate, she not only had a financial interest in the clubs but also occupied a position of authority in their operations.  There was evidence that she regularly paid the wages and signed cheques for payment of accounts in Kushinobo and she was in a position to give directions to the accounts department in the clubs and to make arrangements with the mamasans.  The hostesses described her as a “boss”, one of them referred to her as “holding sway” and such was her authority and influence that the hostess Ruby was unwilling to complain that the fee that she was paid on the first of the three occasions was insufficient because it might affect her future prospects of work.  Although the 2nd appellant “asked” rather than “directed” the hostesses to provide sexual services for the 1st appellant, there was ample evidence, including all the arrangements she made, to support the conclusion that she exercised control, direction or influence over the hostesses for the purposes of their prostitution. 

The offences against s.8(1) of the Prevention of Bribery Ordinance

Section 8(1) provides:

“Any person who, without lawful authority or reasonable excuse, while having dealings of any kind with the Government through any department, office or establishment of the Government, offers any advantage to any prescribed officer employed in that department, office or establishment of the Government, shall be guilty of an offence.”

A “prescribed officer” is defined by s.2(1) as:

“Any person holding an office of emolument, whether permanent or temporary, under the Government.”

The 1st appellant was a “prescribed officer” who was offered by the 2nd appellant an advantage in the form of sexual services. 

The critical question is whether the 2nd appellant relevantly had “dealings of any kind” with the Government through any department, office or establishment.  It has been held, correctly in my view, that even if a defendant has no personal dealings with Government, it will be enough if companies in which the defendant has an interest have such dealings (R v. Chan Wah Tat (Court of Appeal, unreported, Magistracy Appeal No. 28 of 1995, 6 July 1995)).  The expression “dealings of any kind” is of the widest import and is apt to embrace the regular and ad hoc police supervision, checks and reports on the clubs in connection with their licence conditions, the renewal of their liquor and entertainment licences and possible criminal activities such as violence, drugs and vice activities. 

It is not to the point that, at the time the offers of sexual services were made to the 1st appellant, the clubs were not then subject to a particular check or scrutiny.  The fact that the clubs were subject to constant and regular police scrutiny (though not continuous on a daily or even weekly basis) is enough to satisfy the sub-section.  It should not be read as requiring that there should be an actual dealing on foot when the offer is made but rather that a course or pattern of regular dealings will be enough.  It would make no sense at all to read the sub-section as having no application to the case where a bribe is offered in the certain knowledge that dealings are about to take place between the offeror and the Government. 

There is nothing in the provision to support the suggestion that it must be shown that the person to whom the bribe is offered is in a position to influence the outcome of the dealing.  In any event, the trial judge made a finding on this issue. 

Conclusion

For the foregoing reasons, the appeals are dismissed. 

Chief Justice Li :

The Court unanimously dismisses the appeals.

(Andrew Li)    

(Kemal Bokhary)    

(Patrick Chan)

Chief Justice    Permanent Judge   Permanent Judge

               

               

               

               

               

               

(R.A.V. Ribeiro)        (Sir Anthony Mason)

Permanent Judge    Non-Permanent Judge

               

Mr Gerard McCoy SC and Ms Kennis Tai (instructed by Messrs K Y Lo & Co.) for the 1st appellant

Mr Daniel Y Marash SC and Mr Kevin K W Wong (instructed by Messrs K Y Lo & Co.) for the 2nd appellant

Mr Kevin P Zervos SC and Mr Marco Li (of the Department of Justice) for the respondent