Judicial Committee of the Privy Council
| Published date | 01 November 1991 |
| Date | 01 November 1991 |
| DOI | http://doi.org/10.1177/002201839105500405 |
| Subject Matter | Judicial Committee of the Privy Council |
JUDICIAL
COMMITTEE
OF
THE
PRIVY
COUNCIL
WIFE
AIDING
AND
ABElTING
HUSBAND'S STANDARD OF
LIVING
Mok
Wei Tak v R
Inevitably, the provisions of s 10(1) of the Prevention of Bribery
Ordinance in Hong Kong have for over 20 years been described
as Draconian.
The
Privy Council has now approved the epithet as
'not inappropriate', as it casts the burden of proving the absence
of corruption on the defendant. The Draconian nature of the terms
of the Ordinance are exemplified by s 3, under which, it has been
said, a Crown servant cannot receive a Christmas present from his
family 'without the general or special permission of the Governor'.
Be that as it may, s 10(1), in an endeavour to surmount the
difficulties of proof of the bribery which appears to be endemic in
Hong-Kong, provides that a Crown servant, past or present, who
'maintains astandard of living above that which is commensurate
with his present or past emoluments shall be guilty of an offence
unless he gives a satisfactory explanation to the court as to how
he was able to maintain that standard of living'. In
Mok
Wei Tak
vR(1991) 92 Cr
App
R 209, where ahusband and wife were both
convicted under the subsection, the question which reached the
Privy Council was whether the wife could, as a matter of law, be
found guilty of an offence under the subsection, on a charge of
aiding and abetting her husband (of whose guilt there was really
no doubt). Upon this question there had been considerable debate
and doubt in the local courts, so that it is perhaps not surprising
that the Board's humble advice tendered to HM on this occasion
was that of a majority of three to two, notwithstanding that on an
earlier occasion the Board had declared the subsection to be 'clear
and unambiguous': see Lai Man-Yau v
AG
(No 2)
[1978]
HKLR
546. As, on the evidence, the wife's guilt was as clear as that of
her husband, the only question was whether the trial judge's
direction on the law was correct.
491
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