THE QUEEN v. AU CHUN FAI, ALBERT

IN THE SUPREME COURT OF HONG KONG

(Criminal Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 1524 OF 1994

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JUDGMENT

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1. The appellant was convicted before a magistrate of seven charges of accepting an advantage, contrary to s. 9(1)(a) of the Prevention of Bribery Ordinance, Cap 201. On each charge he was sentenced to twelve months' imprisonment, to be served concurrently. He was also ordered to pay to Hing Fung Dyeing and Printing Factory a sum of $100,000.00 by way of restitution. He now appeals against both conviction and sentence.

2. The appellant worked for Hing Fung Dyeing Factory, which is a member of Winnitex Group of companies whose directors included the father-in-law and three brothers-in-law of the appellant. Among his duties was to purchase chemicals including dyestuff for the company. In 1992, the appellant formed an outside company called Prof and was making profits at the expense of Hing Fung's business. He was also accepting commissions from Winfair and Fancy, suppliers of dyestuff. When this matter came to light, the brothers-in-law and the appellant had a discussion and agreed that the appellant would pay Hing Fung 75% of the profits of Prof whilst he was allowed to keep 25% for himself. It was, however, made clear to him and he was specifically warned that he was not permitted to accept any more commissions in the future. He was told to find replacement suppliers for Winfair and Fancy and in the meantime gradually reduced dealings with them. And future commissions received from Winfair and Fancy were to be paid over to Hing Fung.

3. Against this background, it was later discovered that the appellant had been accepting commissions from Johnson Trading Company between March and September 1993 for chemicals supplied to Hing Fung. It was not in dispute that the appellant received the commissions. His defence was that his father-in-law had given him verbal permission to do that and one of his brothers-in-law was all along aware of what happened and acquiesced. It was also suggested that the real reason why his father-in-law and brothers-in-law turned against him was because he had an affair with another woman. They wanted him to be prosecuted and sent to prison so that his wife could divorce him.

4. The magistrate rejected the defence and found the case proved. She was satisfied beyond reasonable doubt that there was no authority or permission, express or implied, or acquiescence to allow the appellant to accept commissions from Johnson Trading Company. The magistrate carefully considered and evaluated all the evidence and made clear findings of fact. She had the advantage of seeing the witnesses and observing their demeanour which I do not have. The appeal against conviction is totally devoid of merit and it is dismissed.

Sentence

5. In assessing sentence, the magistrate took into account the appellant's personal background and that he had a clear record. She was right to have regard to the fact that the total amount involved was large and the offences were committed over a period of 7 months. The appellant was in a position of trust and he had breached and abused that trust. She had considered and bore in mind the relevant authorities on sentence in this type of offence.

6. There is a belief, erroneously, no doubt, that corruption in the private sector is less serious than corruption in the public service. They are equally serious and inter-related because both will affect the public interest. The corrupt moneys paid and received in this way will ultimately pass on to the consumer public as part of the production cost or expenses, and the public interest suffers as a result.

7. In all the circumstances of this case, the sentence imposed on the appellant is appropriate and it is neither wrong in principle nor manifestly excessive. The appeal against sentence is also dismissed.