HKSAR v. TONG WOON TONG and Another

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1080 OF 1997

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J U D G M E N T

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1. The 1st Appellant appeals against a sentence of 5 months imposed on him for a conviction on an offence of offering an advantage and the 2nd Appellant appeals against a sentence of 6 months imposed on him in respect of an offence of offering an advantage, both under section 4 (1)(a) of the Prevention of Bribery Ordinance.

2. In each case, the Appellants offered to a public servant, an Assistant Labour Officer of the Labour Department, a gift, fee, reward or commission as an inducement to get the Labour Department Officer to perform an act in her capacity as a public servant. This, in each case, involved obtaining approval for an application for importing workers under the Supplementary Labour Scheme.

3. Each Appellant runs a herbal medicine shop and was interested in getting workers for those businesses. It was put before the court below and before the court on appeal that the work was of an unpleasant nature and therefore it was difficult to obtain and retain staff. It was for that reason that the Appellants were interested in applying under the Supplementary Labour Scheme.

4. After the initial telephone offers made by each Appellant were refused by the Labour Officer concerned, a report was made to ICAC and a meeting was arranged later between the Appellants and undercover officers. Each Appellant then offered the bribe referred in the charge. This was a commission in each case of $60,000.00. The Appellants pleaded guilty, the facts were agreed and the magistrate proceeded to sentence.

5. In the grounds of appeal argued today it was argued that the learned magistrate erred in principle in giving no credit at all for the 2nd Appellant's age which was 62, and insufficient credit for the 1st Appellant's age which was 74 and the 1st Appellant's poor health. The second ground was that the learned magistrate did not consider at all that each Appellant had made the verbal offer over the telephone, that the offer had been rejected and that if it had not been for the subsequent invitation by the Labour Officer on the instructions of the ICAC, to a meeting with the Appellants, these offences would be unlikely to have occurred. It was submitted that the sentences were manifestly excessive or wrong in principle.

6. Mr. Macrae for the Appellants argued these grounds and went into some detail on them referring the court to various cases on the principles to be observed in this type of sentence. The magistrate had the facts before him and both Appellants were represented by Senior Counsel before the magistrate. It was implicit in the facts that the actual offers resulted from an ICAC investigation and therefore the issue of entrapment as it has been referred today was before the magistrate, although it was not referred to in any detail or relied on by Senior Counsel before the magistrate at the hearing.

7. The magistrate considered a table of recent sentences that had been returned in similar cases. He stated that this table was of limited value given the lack of detail about each case. He stated that in his opinion the present cases were exceptionally serious involving as they did the offer of a substantial sum of money to a public servant to assist the business of each Appellant. He said "Such corruption strikes at the very heart of open and honest Government and tempts honest officials to abandon integrity and impartiality in favour of corrupt parties. The Judiciary of the Hong Kong Special Administrative Region cannot impose other than severe but just sentences in order to send a message to those tempted to indulge in craven acts of corruption.

8. He took as a proper sentence in each case 9 months' imprisonment. He said he could see no reasonable grounds to suspend the sentences. He gave a full discount for the pleas of guilty and additionally he took into account the 1st Appellant's completely clear record and poor health and after discount sentenced him to 5 months' imprisonment. The 2nd Appellant was sentenced to 6 months.

9. It has been urged on me today at an act of mercy if nothing else, to suspend these sentences. In particular it was suggested that the magistrate did not give adequate consideration to the 1st Appellant's completely clear record and the fact that the 2nd Appellant who did not have an entirely clear record had only one comparatively minor offence many years ago. I do note, however, that in respect of that sentence on 2nd Appellant a suspended sentence was passed.

10. I have considered the facts of this case very carefully, the magistrate understood and followed the proper principles when he was dealing with the sentence. I can see no reason for suspending these sentences except as an act of mercy and I had to consider whether this is a proper case in which I should exercise the unstrained quality of mercy. I consider that in each case I should do that as it is highly unlikely that either of these Appellants will be tempted to commit a similar offence again and I also consider that the Appellants' ages in conjunction with their good records do entitle them to serious consideration of suspension.

11. I also note that without the pro-active investigation it is unlikely the appellants would have followed up their original offers.

12. In each case, the sentences remain the same but they are suspended for a period of 2 years. [Effect of suspended sentences explained to Appellants who indicate they understand.] I would like to make it very clear that the Labour Department Officials in this case acted entirely properly throughout and that no criticism can attach to the magistrate in respect of these sentences which were assessed and imposed entirely properly. This is to be regarded as an act of mercy on my part in respect of the sentences and further offenders cannot pray this case in aid as a sentencing precedent.