Case Detail

DCCC000220/1977

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CRIMINAL JURISDICTION

CASE NO. 220 OF 1977

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	The Queen
	against
	TSANG Ting-bun

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Coram: Judge de Basto, Q.C. in Court.

Date of Judgment: 27th January, 1978

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RULING

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1. Mr Martin Lee, for the defence, has applied to the Court, after a Ruling by this Court that the accused had a case to answer, to reserve certain questions of law for the consideration of the Court of Appeal. Mr Lee makes that application on the basis of Section 81(1) of the Criminal Procedure Ordinance as applied to the District Court by virtue of Section 79 of the District Court Ordinance.

2. Section 81 of the Criminal Procedure Ordinance provides:

	"(1)	A judge of the Court of trial may reserve for the consideration of the Full Court any question of law which may arise on the trial of any enactment.
	(2)	In exercising his power under subsection (1), the judge may act either of his own motion or on the application of the Attorney General or the defence.
	(3)	A judge may, if he reserves a question of law under subsection (1) and the accused has been convicted -

	(a)	postpone payment until the question has been considered and decided; and
	(b)	commit the person convicted to prison or admit him to bail, with or without one or more sufficient sureties, and in such sum as he may think fit, conditioned to appear at such time or times as the judge may direct and receive judgment.

(4)

Upon consideration of a question reserved under subsection (1), the Full Court may -

	(a)	affirm or quash the conviction or order a new trial; and
	(b)	make such order or orders as may be necessary to give effect to its decision: (emphasis mine)

Provided that the Full Court may, notwithstanding that it is of the opinion that the question so reserved might be decided in favour of the convicted person, affirm the decision if it considers that no miscarriage of justice has actually occurred."

3. Subsection (4) appears to set out the jurisdiction of the Court of Appeal when a question under subsection (1) is reserved to it. The word "may" at first sight seems to be permissive and not mandatory but the word "and" at the end of subsection 4(a), instead of the disjunctive "or" seems to imply that the Court of Appeal may only have a question of law determined after an accused has been convicted.

4. Section 80 of the Criminal Procedure Ordinance, 1971 edition, appears, at first sight to be less restrictive. Section 80 (the precursor of the present Section 81) reads in part:-

"The judge may reserve for the consideration of the Full Court any question of law which may arise on the trial of any indictment, and, in case where the accused person is convicted, may ..... ( emphasis mine )

5. Subsection (2) of the former Section 80 is substantially the same as the present Section 81(4).

6. Section 78 of the 1899 Criminal Procedure Ordinance reads in part:

"The Judge may in his discretion reserve for the consideration of the Full Court any question of law which may arise upon the trial of any indictment, and, in case the accused person is convicted, may postpone judgment ....." (emphasis mine)

and the subsection goes on in similar terms to subsection (4) of Section 81 and its proviso.

7. At first sight the former Section 78 would seem to contemplate two situations (1) where the accused has not or not yet been convicted and (2) where the accused has been convicted.

8. Although it is conceded by the Crown that the word "on" in Section 81(1) means "during" and therefore, at first sight implies that a question of law may be reserved at any time during a trial for the consideration of the Court of Appeal, the present subsection (4) makes that subsection referable to subsection (1) and subsection (4) seems to confer powers on the Court of Appeal only when a conviction has taken place. The word "may" in subsection (4) at first sight seems to be purely permissive but I am persuaded that the combination of the words "may" and "and" in that subsection restricts the powers of the Court of Appeal to questions of law reserved to it after an accused person has been convicted. Mr Edwards, for the Crown, concedes that if the word "and" were to mean or could mean, "or" then he would not be in a position to oppose this application.

9. Doing the best I can I hold I have no authority, at this stage, to reserve a point of law to the Court of Appeal and the application is therefore refused.

	Sgd.
	( Gerald de Basto )
	Judge, District Court

Representation:

DCCC000220A/1977

IN THE DISTRICT COURT OF HONG KONG

HOIDEN AT VICTORIA

CRIMINAL JURISDICTION

CASE NO. 220 OF 1977

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	The Queen
	against
	TSANG Ting-bun

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Coram: Judge de Basto, Q.C. in Court.

Date of Judgment: 26th January, 1978

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RULING

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1. The accused, a Chief Inspector of Police, is charged under Section 10(1)(b) of the Prevention of Bribery Ordinance, in that he was on 8th May, 1973 in control of pecuniary resources or property, disproportionate to his then present or past official emoluments.

2. Mr Martin Lee, for the defence, has analysed, with his usual thoroughness, the evidence up to this stage of the proceedings and he has submitted that the Crown has not established a prima facie was of control by the accused at the relevant date, and, furthermore, he has urged the Court to deal with each individual item alleged by the Crown to have been in the control of the accused and to make a separate ruling of no case to answer in respect of each such individual item.

3. As I indicated before, the accused is charged with one count. Although the particulars to the charge specify the amount of pecuniary resources the Crown alleges the accused was in control of at the relevant date, as well as other specified properties, I am concerned, at this stage, with whether the evidence now before me is such that, if no further evidence were adduced, a reasonable jury, properly directed, might safely find the accused guilty.

4. Mr Lee further contends that not only should the Court make a ruling on each individual item alleged by the Crown to have been under the control of the accused at the relevant date, but that the Court should also quantify such items as the Court holds the Crown has established a prima facie case. Mr Lee submits that if the total pecuniary amount of such items is less than the total official emoluments received by the accused on the 8th May, 1973, then the Court must hold that the accused has no case to answer.

5. In support of that contention Mr Lee relies on the decision of the Court of Appeal in MOK Chuen and The Queen Criminal Case No. 251 of 1977. Mr Lee interprets Their Lordships in that case to have meant that an accused can only be found guilty if the total assets which he is found to be in control of on the relevant date is in excess of his total official emoluments. Thus, if a Crown servant of ten years' standing has received, during that period, a total of $1 million by way of official emoluments, he cannot be found guilty if the Court finds that at the end of that period (assuming this to be the relevant date) he was in control of $999,999.00. When I first read the MOK Chuen judgment by the Court of Appeal, I did not interpret that decision in the manner suggested by Mr Lee. When Mr Lee referred to that judgment, I read it again several times and I have been wholly unable to ascribe to that judgment the interpretation Mr Lee attributes to it. Such an interpretation, in my view, would do violence to commonsense. If Their Lordships had intended to mean what Mr Lee attributes to them, in effect, that the words "disproportionate to" should be interpreted to mean "in excess of", I am sure the Court of Appeal would have said so in the plainest language. Speaking for myself, I would only be persuaded that Section 10(1)(b) of the Prevention of Bribery Ordinance was intended to be interpreted in the manner Mr Lee suggests if the Court of Appeal were so to hold in the most unequivocal language.

6. After the addresses by Counsel on the submission of no case by Mr Lee, the Court granted leave to Mr Lee to address the Court on the question of jurisdiction. Mr Lee submitted that this Court has no jurisdiction to hear the present case as the accused was not in the Colony on the relevant date.

7. There is no evidence that the accused was in Hong Kong on the relevant Sate. Indeed, there is evidence that he was on "vacation leave" in Europe on the relevant date.

8. Mr Lee contends that, as the accused was not in Hong Kong on the relevant date, the present charge is not justiciable in the Courts of Hong Kong in that such rights of control as he may have had on the relevant date were vested in him out of the jurisdiction and that, therefore, he is not amenable to the jurisdiction of the Hong Kong Courts in respect of any control vested in him whilst he was outside the jurisdiction. Mr Lee agreed with me that, if his contention were right, it would mean that a Crown servant could not be found guilty under Section 10(1)(b) if it transpired that, on the relevant date, the accused had spent that particular day in Macau. It is true, as Mr Lee pointed out, that the Legislature has not made extra-territorial provisions in respect of Section 10(1)(b) but the wording of that section is tolerably clear:

9. 10(1) Any person who, being or having been a Crown servant -

	(a)	......
	(b)	is in control of pecuniary resources or property disproportionate to his official emoluments,

shall ...... be guilty of an offence.

10. In my view, unless it can be assumed or presumed that by the very act of removing himself from the jurisdiction, the accused divested himself from such control of assets as he may have had, the Courts in Hong Kong have jurisdiction to try a case where the accused is, or was, a Crown servant in receipt of official emoluments and it is alleged that he had control of pecuniary resources or property disproportionate to his present or past official emoluments and the accused is before the Court. In my view, it matters not where the accused was on the relevant date, whether within or without the jurisdiction. The accused is now before the Court and he is amenable to its jurisdiction.

11. On the question of making separate rulings in respect of each individual item particularized in the charge, and draconian as Section 10 may be, I am not persuaded that I ought to depart from established practice by giving separate rulings of whether or not the Crown has established a prima facie case in respect of each individual item forming the particulars of one charge.

12. I hold that I have jurisdiction to try this case and I hold that the accused has a case to answer on the charge presently before the Court.

	Sgd.
	(Gerald de Basto)
	Judge, District Court

Certified true copy

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(Amy Kei)/Stonographer
26th January, 1978

Representation:

THE QUEEN v. TSANG TING-BUN

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