刑事檢控科各律師/高級律 - Department of Justice

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20 could only lead to speculation. CA 520/2003 MA CJHC Stuart-Moore VP Lunn J (11.6.2004) *Kevin Zervos SC & Marco Li #N Sarony SC Johannes Chan Angela Gwilt & Kennis Tai (1) SIN Kam-wah (2) LAM Chuen-ip Misconduct in public office/Senior police officer accepting free sexual favours from night club owner/No real distinction between acceptance of sex and acceptance of money/Police officer deemed to be on duty when circumstances so required 藉公職作出的不當行為 – 高級警務人員接受夜總會東主免費提供的性優待 – 接受性優待和接受金錢實際上並無分別 – 警務人員在情況需要時當作為在當值中 A1 was convicted after trial of three charges of misconduct in public office. A2 was convicted of three charges of exercising control, direction or influence over other persons for the purposes of or with a view to their prostitution, and three charges of offering an advantage to a public officer. All three sets of charges were inter-linked and related to three separate occasions on various dates between March 2001 and May 2002. They were reciprocal charges. A1 at the material time was a Senior Superintendent of the Hong Kong Police Force. Between April 1998 and March 2001, he was attached to the Organized Crime and Triad Bureau. Between April 2002 and May 2002, he was attached to the Narcotics Bureau. A2, the wife of a police officer, had a beneficial interest in four clubs in Tsim Sha Tsui. The judge at trial found that these had the primary function of providing to their customers sexual services in the form of hostesses. The hostesses were, in reality, prostitutes. The evidence showed that A1 accepted sexual favours bestowed on him by A2. He accepted free sexual services from the hostesses she arranged for him. The judge concluded that these favours were provided to and accepted by him in relation to his office. He was a Senior Superintendent and the favours provided were well beyond normal hospitality. The money paid to the hostesses by A2 was substantial. The inference was that these forms of entertainment were provided to A1 as some sort of ‘sweetener’ to him. A2 had interests in establishments which were extremely dubious from a legal point of view. On appeal, A1 submitted that all A1 did was to accept hospitality from a friend. A2 was the wife of a police officer. It was, therefore, pure conjecture that there was any corrupt motive
21 involved. This was reinforced by the fact that although the establishments with which A2 was linked did have dealings with the police, these dealings were with a different department within the Police Force to that to which A1 belonged. A1 further submitted that a police officer could only be deemed to be on duty when he was required (in the sense of being actually instructed by a superior) to be on duty; alternatively, if he was always to be on duty, this was somehow in breach of the antidiscrimination provisions of the Bill of Rights (Articles 1 and 22) as he, unlike others in society, would never really have a day off. Held : Section 21 of the Police Force Ordinance, Cap 232, read: 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 time and every place in Hong Kong where he may be doing duty. (1) For A1 to put himself in the position of accepting favours of this nature (especially given his office) from a person who indulged in highly questionable activities and whose establishments would have frequent contacts with the police was very serious misconduct indeed. There was no material before the judge that suggested that what was provided to A1 was mere hospitality between friends. There was no material to suggest that A1 and A2 were even friends. Even if they were, the provision of sexual favours was hardly the normal form of hospitality between friends, even close friends. The whole idea here was far fetched; (2) A1 was a very senior police officer and to be kept ‘sweet ’ by a person like A2 was significant. Purely as a matter of common sense, it was difficult to see any explanation for A1’s acceptance and A2’s provision of the sexual favours other than sinister ones. It was accepted by the Applicants that had money changed hands, this would have been very much more sinister. There was little or no difference in this case between the payment of money and the provision, at no cost to A1, of sexual favours; (3) In analyzing the facts of any given case to see whether the ingredients of the offence had been proven to exist, the central theme of the offence of misconduct had to be borne in mind: the concept of the intentional abuse of an official position. In this case, the necessary ingredients of the offence existed and A1 had intentionally abused his official position;
Page 1 and 2: To : All Counsel/Senior Law Clerks/
Page 3 and 4: 3 INDEX 目錄 A p. 4 - p. 17 第
Page 5 and 6: 5 問題以「案件呈述
Page 7 and 8: 7 存在。簡單來說 , 胡
Page 9 and 10: 9 17 條開宗明義地說 `
Page 11 and 12: 11 [English digest of MA 1270 of 20
Page 13 and 14: 13 were ordered by the Council or a
Page 15 and 16: 15 (1) The magistrate’s analysis
Page 17 and 18: 17 Result - Appeal allowed. No cons
Page 19: 19 judge left for the jury’s cons
Page 23 and 24: 23 C. CRIMINAL APPEALS/ AGAINST SEN
Page 25 and 26: 25 CA 126/2002 Stock & Yeung JJA Lu
Page 27 and 28: 27 (5) Insofar as A3 and A4 complai
Page 29 and 30: 29 good character, he would have re
Page 31 and 32: 31 Viscount Kilmuir LC saying at p
Page 33 and 34: 33 (1) The magistrate had taken int
Page 35 and 36: 35 供事發當時司機的
Page 37 and 38: 37 The police regarded the Appellan
Page 39 and 40: 39 E. MAGISTRACY APPEALS/ AGAINST S
Page 41 and 42: 41 adduced by the Appellant as to h
Page 43 and 44: 43 Held : (1) The law was as set ou
Page 45 and 46: 45 The magistrate refused to award

刑事檢控科各律師/高級律 - Department of Justice

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