SECRETARY FOR JUSTICE v. LAU CHO MAN

IN THE COURT OF APPEAL

1997, NO. AR 8

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J U D G M E N T

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Chan, CJHC (giving the judgment of the Court):

1. The respondent pleaded guilty to one count of conspiracy to offer advantages to a public servant contrary to common law and section 4(1)(a) and (b) of the Prevention of Bribery Ordinance, Cap. 201. He was sentenced to 11 months' imprisonment which was suspended for two years. The Secretary for Justice applies to review this sentence under section 81A of the Criminal Procedure Ordinance, Cap.221.

2. It was alleged that the respondent conspired with a Senior Health Inspector of the USD by the name of Lee Hon Sun to offer advantages to Lee in return for receiving advance warning of inspections by USD's officials of the restaurant which was partly owned by the respondent. The advantages accepted were payments of $6,000 each for every three months. A total of four such payments amounting to $24,000 were made. It is also not disputed that there were other gains which included the respondent's restaurant buying vegetables from Lee's brother-in-law and seafood from Lee's father. In return, the respondent's restaurant had been warned in advance on five occasions of a forthcoming inspection of the restaurant by USD officers.

3. Paragraph 2 of the Summary of Facts alleged that it was the respondent who approached Lee to offer bribes to him. This was disputed by the respondent. The sentencing judge held a Newton hearing. Having heard the evidence, she accepted the respondent's evidence. She found that it was Lee who initiated, as it were, the offence. He contacted the previous owner of the restaurant who in turn contacted the respondent. The judge also found that it was Lee who solicited the bribes and advantages. At the end, she adopted a starting point of 14 months. She gave 25% discount for the plea and a further discount for his clear record bringing the sentence down to 11 months which she suspended for 2 years.

4. The Secretary for Justice is not seeking to review the length of the sentence. What the Government is now asking for is that the suspension should be lifted because it is wrong in principle. The main contention of Mr Di Fazio for the Secretary for Justice is that there was no exceptional circumstance which warranted the suspension of the sentence. He also argues that age, clear record and lack of premeditation and the fact that the respondent had been pressurized to pay bribes were not exceptional circumstances. He criticizes the sentencing judge for failing to identify what exceptional circumstances were in her mind. Lastly he contented that the suspended sentence was not consistent with the sentences imposed by judges in the District Court in other cases on accused who had also paid bribes to Lee and his senior officer in similar corruption conspiracies.

5. On the part of the respondent, it is submitted that the thrust of the Secretary's application was in effect to treat guidelines as mandatory. Mr Grossman, SC submits that there must be considerable scope for flexibility and judicial discretion when the Court was considering a proper sentence in the circumstances. Counsel also argues that the judge was aware of the guidelines but had found exceptional circumstances in this case. Although there are no guidelines setting out what exceptional circumstances were, counsel submits that the sentencing judge was correct in holding that there were and that these included the fact that the respondent was in fact a victim of extortion. He only had the choice of being targeted or to be notified in advance of inspection visits.

6. The sentencing judge obviously found Lee's despicable conduct intolerable. The inspector was involved in a systematic and organized scheme to extract bribes and advantages including expensive dinners for a token value and business for his relatives. He and his senior officers were obviously involved in this sort of schemes preying on restaurants in five districts which included Kwun Tong, Kowloon City, Tokwawan, Lei Yue Mun and Sheung Shui. But that, in our view, does not absolve the culpability of the respondent in this offence.

7. The sentencing judge was also impressed by the situation and background of the respondent. He was 45 years of age, had a clear record, and had worked in the restaurant business for 20 years. According to the judge, that was the first time he became a part-owner of a restaurant and he had put in his life long savings of $300,000 into the business. The sentencing judge found Lee to have solicited the bribes and advantages. But what she did not expressly find was that the respondent was a victim of extortion or blackmail as senior counsel initially put it. This would be inconsistent with what she said on page 16 of the Appeal Bundle :

"The respondent now knows, as he had told the ICAC, that if he was ever approached again, he would report it immediately. I think he also realises why the offence is insidious and serious because it ultimately affects the health of the public who eat in restaurants. I think it is unlikely that he will commit an offence again."

8. We do not accept that this is a case of extortion let alone blackmail. While the respondent might have been passive in the transaction, it is clear that he made a conscientious decision to pay bribes and advantages to the inspector. In return, he did get advance warnings. We note that the corruption had been practised for a period of a little less than one year. The respondent clearly had, in our view, other options than to pay the bribes as solicited by Lee. By paying those bribes and advantages, he had in effect encouraged Lee to perpetrate his crimes and expanding his "web of corruption".

9. It is quite clear that there is a line of authorities saying that in corruption cases of this nature, the usual sentence would be an immediate custodial sentence and it is only in the rare or exceptional circumstances that other alternatives would be invoked. There is little or no dispute on this. It is not necessary to go into these cases.

10. Counsel submits that the respondent was simply carrying on his lawful business and that distinguished this case from a case where a person pays bribes to run an unlawful business. We think that this distinction is artificial. The gravamen of the offence was the paying of a public officer to either do something extra which he should not do or refrain from performing his duty which he should do. Whether the offeror or payer of bribes is running a lawful business or not only goes to mitigation and does not constitute an exceptional circumstance.

11. While it is clear that the sentencing judge was aware of the relevant guidelines and decisions, she did not specify what exceptional circumstances there were in this case. That of course does not in itself vitiate the exercise of her discretion if there were indeed exceptional circumstances. However, we do not find anything in what the sentencing judge had said which were or amounted to exceptional circumstances. In our view, there was none. There was no exceptional circumstance upon which she could have exercised her discretion to suspend the sentence. The sentencing judge had no basis for exercising her discretion. In our view, the suspension is wrong in principle. We are therefore entitled to interfere with that discretion.

12. Corruption strikes at the root of a clean and efficient system which all of us value so much and which has brought success to Hong Kong. This type of offence is very serious. We notice that the sentence of 11 months is very much at the lower end of the range. We would not normally have interfered with that. We take into consideration, however, that this is an Application for Review. The consequence of lifting the suspension would mean that the respondent who has hitherto been able to walk free would have to go to prison for 11 months. In these circumstances, we regard a sentence to 8 months as appropriate. We would therefore grant the application for review and substitute a sentence of 8 months imprisonment for the suspended 11 month sentence.