HKSAR v. SO HOI CHUEN AND ANOTHER

HCMA398/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.398 OF 2006

(ON APPEAL FROM KCCC 5575 OF 2005)

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J U D G M E N T

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Introduction

1. The 1^st appellant was convicted by Mr Douglas Yau sitting in Kowloon City Law Court on 17 February 2006 of the offence of Being a Public Servant Accepting an Advantage.  In the same trial and on the same day, the 2^nd appellant was convicted of the charge of Offering an Advantage to a Public Servant.  Both appellants were sentenced to 15 months’ imprisonment.  The 1^st appellant now appeals against his conviction and the 2^nd appellant appeals against the sentence imposed.

The prosecution’s case

2. The prosecution’s case was that the 1^st appellant, being at the time a detective station sergeant of the Hong Kong Police, accepted an advantage from the 2^nd appellant, consisting of free accommodation in a flat in Macau for six months as an inducement to or reward for or otherwise on account of the 1^st appellant abstaining from performing acts in his capacity as a public servant, namely treating the 2^nd appellant favourably in a manner contrary to his duty as a police officer at some future time. 

3. The prosecution’s case was that the two appellants were friends.  The 1^st appellant was, at the material time, a detective station sergeant attached to the Anti-Triad Section of the West Kowloon Police Headquarters.  He never told his colleagues that he and the 2^nd appellant were friends. 

4. In June 2000, in respect of a criminal damage case which occurred at a mahjong school, the Mongkok police interviewed the 2^nd appellant.  Two months later, the 2^nd appellant was arrested by the 1^st appellant’s unit, after which three records of interview were obtained from the 2^nd appellant.  Under caution, the 2^nd appellant was questioned about three cases of criminal damage which occurred at the same mahjong school.  The 2^nd appellant was admitted to police bail until 6 March 2001.  On that day, the 1^st appellant was instructed by his superior to interview the 2^nd appellant.  The 1^st appellant was the second-in-command of that particular unit.  The unit comprised of 10 police officers.  The 2^nd appellant’s police bail was discharged on 17 July 2001.  

5. On 21 March 2003, the 1^st appellant’s unit was investigating an unlawful assembly case in which the 2^nd appellant was suspected to have taken part.  On that day, the 1^st appellant’s subordinates went to the 2^nd appellant’s home to try and arrest him, but he was not home.  The 2^nd appellant was arrested on 22 March 2003 and a record of interview was taken from him.  He was admitted to police bail which continued until 11 May 2003 when the bail was discharged.

6. On 24 July 2003, the 1^st appellant took part in a police licence check of a disco, during which the 2^nd appellant was one of the persons questioned by the police.  Two days later, the 1^st appellant and his team members invited the 2^nd appellant back to the police station for questioning in respect of a wounding case. 

7. On 1 September 2003, the ICAC monitored a meeting between the two appellants which took place at the Fairwood Restaurant on 1/F, 238 Nathan Road, Kowloon.  The ICAC video-recorded the meeting and also recorded the conversation between the two appellants.  From the tapes, it was seen that the 2^nd appellant handed some keys to the 1^st appellant and some papers were also handed over which apparently set out the address of the property concerned.  On the audio tape, the 2^nd appellant was recorded to have asked the 1^st appellant when he would be living (in the flat) until and the 1^st appellant replied about six months.  The 2^nd appellant was also recorded to have said that he had paid the 1^st month’s rent and that he would pay the rent for the remaining five months on the 1^st appellant’s behalf.  The 2^nd appellant also said that he had paid two months’ deposit and one month’s rent in advance.

Grounds of appeal

8. The 1^st ground of appeal was that in exercising his discretion to admit the tapes, the magistrate failed to consider the situation as a whole.  Counsel for the 1^st appellant, Mr Chu, quoted the Court of Appeal judgment in HKSAR v. Chan Kau Tai [2006] 1 HKLRD 400 and submitted that the legal test set out in Chan’s case should have been stated more clearly by the magistrate.

9. The reply by Mr Man, counsel for the respondent, was that the magistrate did consider the criteria set out in Chan’s case and he dealt with these in his Statement of Findings.  Mr Man accepted that the appellant’s right to privacy had been breached but he questioned how serious the breach was.  He submitted that privacy would normally have to be safe-guarded more in private premises, e.g. in a person’s toilet or changing room, but in the instant case, the tapes were recorded in a public place.  He submitted that the public interest demanded that people who commit crimes should be brought to justice and that minor crimes might not require an invasion of privacy to detect them but major crimes would justify such a step.  He submitted that this was a serious case of corruption involving a fairly senior police officer.  The prosecution’s case was that the advantage was given to the 1^st appellant as a “general sweetener” so that the 1^st appellant would be more inclined in the future to show favour to the 2^nd appellant. 

10. I accept Mr Man’s submission that the magistrate was not in error when he exercised his discretion to admit the tapes.

11. The 2^nd ground of appeal was that the magistrate was in error in ruling that the absence of a witness did not affect the 1^st appellant receiving a fair trial.  Counsel quoted the case of HKSAR v. Law Yik Lun [2001] 1 HKLRD 676.  Counsel questioned the magistrate’s assessment that the witness in question was not a reliable witness because even though she had been on intimate terms with the 1^st appellant, when she was asked to pick out his photograph from a number of photographs, she failed to do so.  The magistrate concluded that Lau the witness was evasive and the witness’s evidence would not have been of any assistance to the 1^st appellant’s case.  The witness was not a prosecution witness.  The defence had taken no steps to ensure her attendance at the trial.  Two days before the resumed hearing, the solicitors for the 1^st appellant wrote a letter to the prosecution requesting that the witness be produced at the trial for cross-examination.  The prosecution was of course not bound to accede to the request.

12. Mr Man’s submission was that the finding by the magistrate that the witness was evasive was a finding of fact which the magistrate was entitled to make. 

13. I agree with the submission and I find that there is nothing to this ground.

14. The 3^rd ground of appeal was that the magistrate was in error to find that the 1^st appellant had accepted an advantage.  Counsel’s submission on this ground was that there was nothing in the prosecution’s case to show that the 1^st appellant did not intend to pay the rent for the property in question. 

15. Mr Man’s submission was that on the audio tape it was quite clear that the 1^st appellant had accepted the offer of the flat in Macau and there was nothing else said during the meeting which suggested that he would pay the rent.  On the contrary, it was the 2^nd appellant who said that he had paid the deposit and the first month’s rent and would further pay the remaining five months’ rent if the 1^st appellant wanted to live there for six months.

16. Ground 4 was that the magistrate did not fully consider the fact whether the 1^st appellant would necessarily have been able to enjoy the advantage which was the subject matter of the charge, that is, the benefit of having the use of six months’ rent-free accommodation in Macau.  The basis of this ground was that there was no evidence that the flat was ever lived in by any person pursuant to the arrangement made by the 2^nd appellant.  The evidence was also that the two appellants were arrested within a matter of days of this monitored meeting.

17. Mr Man’s reply to that, with which I agree, is that under section 2(2) of the Interpretation section of the Prevention of Bribery Ordinance, Cap.201, it is stated that :

“	(2)	For the purposes of this Ordinance-
		…..
		(c)	a person accepts an advantage if he …. agrees to take, receive or obtain any advantage, whether for himself or for any other person.
		…..”

18. Mr Man’s submission is that on the tapes it was quite clear that the 1^st appellant at that meeting had agreed to take the keys and the tenancy of that flat for which the two months’ deposit and one month’s rent in advance had been paid. 

19. Counsel’s submission on the last ground of appeal was that the magistrate did not fully consider the fact that by 1 September 2003, the date of the meeting, the 2^nd appellant was no longer a suspect in respect of any criminal cases, nor had he been charged with any criminal offences.  Counsel submits that by the day of the meeting, the 2^nd appellant was no longer a suspect and therefore there was insufficient evidence to show that the 2^nd appellant offered and the 1^st appellant accepted a “general sweetener”.  It was submitted that on the day of the meeting the relationship between the two appellants seemed to have been more of an informer with a police officer rather than a suspect being with a police officer.  The submission was also that for the magistrate to draw the inference that the advantage was to “keep sweet” the 1^st appellant, that was not an inference which was the only irresistible one.

20. Mr Man’s reply was that the magistrate quite correctly found that at the time of the meeting the 1^st appellant knew that the 2^nd appellant had been arrested twice by the police, and on the 2^nd occasion he was arrested in the same year as the meeting, namely 2003.  The magistrate quite clearly and quite correctly found that the advantage was given to the 1^st appellant as a “general sweetener” so that on some future day the 1^st appellant would be more inclined to favour the 2^nd appellant in the transaction of any business that the 2^nd appellant might have with a public body, namely the Hong Kong Police Force.

21. This last ground also fails.

Conclusion

22. In all the circumstances, the appeal by the 1^st appellant against conviction is dismissed.

The 2^nd appellant’s appeal against sentence

23. Mr Hoo, SC appearing for the 2^nd appellant, submitted that the offence was not premeditated and was committed on the spur of the moment.  The magistrate in fact in his Statement of Findings did not find that the offence was not premeditated.  Having regard to what happened at that meeting between the appellants as shown on the video tape and as the conversation as evidenced by the audio tape showed, the 2^nd appellant before attending the meeting had taken steps to make an appointment with the 1^st appellant and then he brought along to the meeting the keys and the documents he handed over to the 1^st appellant at the meeting.  I cannot agree that the offence was not premeditated and that it was committed on the spur of the moment.

24. Counsel’s second submission, amongst others, was that in substance this was very much a technical offence in that nothing was said about what was expected of the 1^st appellant, nothing was said about what the 1^st appellant should do to help the 2^nd appellant at the time of the meeting or on any future date.  Mr Man for the respondent submits that there was a relationship between the two appellants—they were clearly friends or acquaintances, the evidence showed that there were official dealings in the past between them and Mr Man submits this was a “general sweetener” situation and quite clearly the offence cannot be said to be a technical offence.  I agree with that submission.  By its very nature, a general sweetener offered to a government servant would not and could not envisage anything specific which the government servant would have to do in the future.  A general sweetener means what those words say, in other words, that if the offerer should have any dealings with the government or with the department in which the offeree worked, then the offeree would favour the offerer in those future dealings.

25. Mr Hoo’s third submission was that from the statistics provided to me by the respondent, it is clear that section 4 offences are not prevalent and have not been increasing since the year 1997 when the statistics submitted started.  That is true in so far as the figures are concerned.  One of Mr Man’s submissions was that the figures only show convictions recorded in those years.  He submits that there might have been many of these cases which occurred but which were never detected for the reason that there might not have been a complaint.  In my view whether section 4 offences are still prevalent or have been increasing since the years gone by, this offence can be very damaging to society and strikes at the very heart of our efforts to try and combat corruption.  The attitude of the courts towards corruption offences goes back as far as the year 1974 when the ICAC was first created, when in the case of AG v. Li Yuk Hing, CAAR3/74, the Full Court expressed the view that ：

(a)	the minimum sentence for corruption in circumstances such as apparent here must be a custodial sentence of 12 months; and
(b)	in all but the rarest of cases an offence under this section merits a custodial sentence and one which takes effect immediately.

The authorities were considered by Roberts CJ in the year 1981 in the case of R. v. Lai Yuk Kui, CACC917/1981 when the Chief Justice said that corruption offences should carry a minimum term of imprisonment of 12 months.  The Chief Justice ended with these words :

“The imposition of deterrent sentences on those who are convicted of bribery is an important factor in the community’s efforts to eradicate corruption.”

This was echoed by the Court of Appeal in 1994 in the case of R. v. Chan Kwok Hing, CACC103/1994 where Nazareth JA (giving the judgment of the Court) said :

“We do not consider that the climate in Hong Kong as regards the seriousness of corruption has changed since 1981 so that the principles set out in Lai Yuk-kui should be changed.  We would again emphasise, as was done by Pickering J. in R v Wong Yuen-cheung, that guidelines on sentencing are not a straight-jacket but we do not consider the judge here was wrong to take an immediate custodial sentence of 12 months as the appropriate level for relatively minor cases of corruption in the public section.”

26. In the course of the hearing, Mr Man was granted by me a short adjournment for him to return to chambers to consult with his colleague Mr McWalters, SC, Deputy Director of Public Prosecutions.  This was for a reason because Mr Hoo narrated to me what he considered to be Mr McWalters’ view on corruption cases which arose from a conversation that Mr Hoo had with Mr McWalters after the first day’s hearing.  At the resumed hearing, Mr Man then informed the court that it was the view of his department that all law enforcement officers including police officers should be treated by the courts more strictly than when the courts were dealing with other public officers.  This of course would involve a careful consideration of the facts of each case because, for instance, if a non-law enforcement officer is involved in corruption, his duties might be such that public safety might be endangered if he were to omit to perform certain duties, in which case of course his case would have to be regarded as a very serious case.

27. Mr Hoo also placed it on record that his lay client was most dissatisfied with the quality of the legal advice that he had received at the trial when he was represented by another Senior Counsel and junior counsel.  I could not see the relevance of that submission but I believe that the implication was that if he had been given other legal advice he might have pleaded guilty and earned for himself the usual discount on a plea of guilty.  My view is that that submission has no relevance in this appeal, the fact remaining that the 2^nd appellant did not plead guilty and therefore was not entitled to the usual discount on a plea.

Previous cases involving section 4 convictions

28. From the statistics and the information provided to me by Mr Man it is true that in all section 4 convictions tried in the Magistrates Courts, in a majority of cases, the starting point used was less than 15 months.  In one case where the defendant was Yiu Shu Pui, KC3997/2005, where a senior police constable had accepted $10,000 for not taking prosecution action against the offeror, the sentence of three years’ imprisonment was reduced on appeal to two year’s imprisonment.  In another case, SPCC5985, HKSAR v. Lai Wai Shun, where a Correctional Services Department officer accepted $5,000, the starting point used was 13½ months.  The bribe in that case was for the defendant to convey an unauthorised article into a prison.

29. In the case of R. v. Kwok Siu Wa, HCMA689/1995, a police officer solicited from a suspect in a dangerous drugs case the sum of $5,000 per month and in return the appellant would “take care of the selling of dangerous drugs” by the suspect in that he would tip off the suspect on the movements of the police.  The $5,000 was paid to the defendant.  He was sentenced to 2½ years’ imprisonment on each count, the sentences to run concurrently.  Chan J (as he then was) considered it a very serious case as the defendant, if the scheme was carried out, would be making use of his position to help in offences which it was his duty to stamp out.  Chan J said that the degree of culpability in each case, the scheme involved and the other circumstances had to be looked at.  The appeal against sentence was dismissed.

30. In the instant appeal, the 2^nd appellant had bribed the 1^st appellant who was the most senior rank and file detective in the Anti-triad Unit of the Kowloon West Headquarters.  The 2^nd appellant had had at least three encounters with the police in the three years preceding the bribe and the 2^nd appellant must have considered that it would be a good investment to give a general sweetener to the 1^st appellant.  The evidence did not show what the rental for the flat in question was and so it was unclear what the actual amount of the bribe would have been if the 1^st appellant had lived in the flat for six months.  However, whatever the rental, my view is that the bribe was not insubstantial.  Having regard to the attitude of the courts in the past in dealing with corruption offences and having regard to the previous cases, some of which I have quoted, my view is that I cannot say that this sentence of 15 months’ imprisonment was either wrong in principle or was manifestly excessive.  Unless I consider the sentence to be manifestly excessive, it would be quite wrong of me to interfere with the sentence.  In the circumstance, the appeal of the 2^nd appellant against the sentence imposed upon him is dismissed.