HKSAR v. LEUNG YAU WING, VICTOR

CACC 444/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 444 OF 2013

(ON APPEAL FROM DCCC NO. 486/2013)

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REASONS FOR JUDGMENT

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Hon Lunn VP (giving the Reasons for Judgment of the Court) :

1. The applicant, who was represented by Mr Benjamin Chain, sought leave to appeal against the sentence of 3 years and 1 month’s imprisonment imposed on him by District Court Judge Browne following his conviction after his plea of guilty to a single charge of soliciting an advantage as an agent of Greater Lucky (HK) Company Limited (“Greater Lucky”) on 10 July 2012, contrary to sections 9(1)(a) and (12)(1) of the Prevention of Bribery Ordinance, Cap. 201 (Charge 1). No application was made in respect of the sentence of one month’s imprisonment imposed in consequence of his conviction, on his own plea of guilty to a charge of failing to surrender to custody on 12 August 2013, contrary to section 9L of the Criminal Procedure Ordinance, Cap. 221 (Charge 2), which sentence was ordered to be served consecutively to that imposed in respect of Charge 1. At the hearing we dismissed the application for leave to appeal against sentence and said that we would give our reasons for so doing in due course. That, we do now.

2. On 30 April 2014 the applicant appeared in person before Chu JA seeking leave to appeal against sentence.  At the conclusion of the hearing Chu JA delivered a ‘Decision’ in which, having addressed matters at some length she said :[1]

“ I am of the view that two aspects of the sentence on the first charge require further submissions and consideration: (1) whether the starting point for 4½ years is manifestly excessive; and (2) whether sentence should be further reduced on account of the applicant’s clear record and positive good character.

Accordingly, I direct that the application be listed for hearing before a court of two or three judges.”

3. That being the judge’s direction, it appears that is why no Form XII of the Criminal Appeal Rules of the Criminal Procedure Ordinance, Cap. 221 was issued by the Court, as is otherwise required by rule 42 of the Rules.[2]

4. At the hearing on 25 June 2014, it became apparent that the Court would be assisted by a transcript of the hearing at which the applicant had pleaded guilty before District Court Judge Browne on 10 December 2013.  Accordingly, we directed the preparation of the transcript and ordered that it, together with any documents produced to the Court in the course of mitigation, be included in the Appeal Bundle.  As a result, we adjourned the hearing of the application.  At issue, was whether or not the judge had accepted specific mitigation advanced on behalf the applicant that he was always unable to make good his claim to Mr Kwok that he could cause Greater Lucky to delay or give up signing the contract with the transport department.

The Facts

5. The applicant accepted that on 10 July 2012 he had approached Mr Kwok Mun Keong, the executive director of Serco Group (HK) Limited (“Serco”) and at a meeting in a cafe of a hotel in Causeway Bay he had solicited an advantage from him.  At that time the applicant was a transport director of Yue Xiu International Development Limited (“Yue Xiu”), but had been assigned to act on behalf of Greater Lucky in relation to their tendering for contracts.  Serco had held the management contract awarded by the Transport Department of the Hong Kong government for the Lion Rock and Kai Tak Tunnels.  However, in the tendering process held in advance of the expiry of the contract, on 31 July 2012, Greater Lucky had been awarded the contract by the Transport Department at a price of $406 million.  It was agreed between those parties that the contract would be signed on 17 July 2012.  If Greater Lucky failed to do so, it was possible that the contract might be awarded to Serco.

6. At the meeting on 10 July 2012, the advantage solicited by the applicant from Mr Kwok was a payment of 1.5% of the contract price if he caused Greater Lucky to give up or delay the signing of the contract.  The applicant said that he had some financial data of Greater Lucky, which showed that Greater Lucky would lose tens of millions of dollars in the contract.  After that meeting, on 11 and 12 July 2012, Mr Kwok received several text messages on his mobile telephone from a mobile phone which was registered in the name of the applicant’s son.  In the end, Mr Kwok replied to the applicant informing him that Serco was unable to proceed with the proposed arrangement. At the outset, Mr Kwok had reported the matter to Serco.

7. Having been arrested by officers of the Independent Commission Against Corruption (“ICAC”) on 9 November 2012 the applicant had been granted bail on condition that he appear for trial in the District Court on 12 August 2013.  However he failed to do so.  He was re-arrested on 21 October 2013.

Reasons for sentence

8. In his reasons for sentence the judge noted that in mitigation it had been submitted that the applicant was a 66-year-old man with a “clear record”.  Further, that having obtained a Bachelor of Arts degree awarded by the University of Hong Kong in 2001 at the time of sentencing, he was working on a doctoral thesis to be awarded by the University of Melbourne in Australia.  The judge’s reference to the applicant’s degree having been awarded in 2001 was clearly a slip, since the written material in the mitigation provided to the Court made it clear that the degree had been awarded in 1970.  Also, the applicant was a council member of the Chartered Institute of Transport in Hong Kong.  Finally, the judge acknowledged of the applicant that “Over the years he had been actively involved in a number of charitable and sporting organisations”.[3]

9. The judge noted that the explanation advanced for the circumstances in which the applicant had committed the offence the subject of Charge 2 was that, having been unable to raise finance to secure legal representation, he had panicked and had gone to the Mainland.  However, later he had informed the ICAC of his planned return and arranged to surrender to them.

10. Having noted that the applicant had provided a very specific percentage of the contract price which he wished to secure as his advantage for his assistance to Mr Kwok, the judge determined that the “solicitation was not made casually”. [4]  Of the amount solicited, he said it was “a very large sum of money” and that it was “a very significant breach of trust in that it related to his company standing to lose a very substantial contract.” [5]  Also, he observed that the initial solicitation was followed by contact between the applicant and Mr Kwok by way of text messages.[6]

Starting point

11. Having acknowledged that “no money changed hands” and that a report was made promptly to the authorities, in stipulating a starting point to be taken for sentence of 4½ years’ imprisonment, the judge said that he had taken into account : [7]

“ All the matters urged in mitigation, including the defendant’s age, a significant fall from grace and the unlikelihood that he would be able to join his family in Australia.”

Discount

12. The judge said that the applicant was entitled to a discount of one-third of that stipulated as the starting point “to reflect his timely plea”. [8]

Sentence

13. In consequence, the judge sentenced the applicant to 3 years’ imprisonment on Charge 1 and one month’s imprisonment on Charge 2.  In respect of the latter sentence, the judge said that he took into account that, having contacted officers of the ICAC, the applicant had returned to Hong Kong voluntarily.

Grounds of appeal against sentence

14. In the grounds of appeal against sentence, Mr Chain advanced two points.  First, he submitted that the starting point of 4½ years’ imprisonment taken for Charge 1 was manifestly excessive, having regard in particular to the fact that no money was paid.  Secondly, he contended that the judge had erred in failing to give sufficient discount from that taken from the starting point to reflect the applicant’s good character over a lengthy life.

15. In his written submissions, repeated orally in argument at the hearing on 25 June 2014, Mr Chain asserted that :

“ The learned trial judge seemed to have accepted that “(the plot) had no chance of success (paragraph 14) and if so the reference (in paragraph 20) to” (the) company standing to lose a very substantial contract “may not reflect the position.”

16. In oral argument, Mr Chain submitted that at the hearing in the lower court the judge did not indicate that he rejected the mitigation advanced as to the first of those matters.  He contended that if the judge was minded to reject that aspect of mitigation he ought to have made that clear to counsel representing the applicant to afford him the opportunity to have the issue resolved in a Newton hearing.  The judge having failed to do so, he submitted that this Court must accept the contention advanced in mitigation that the claim made by the applicant to Mr Kwok had no chance of success.

17. It was in those circumstances that the Court called for a transcript of the mitigation advanced by Mr Solomon Chong in the lower court.  At the resumed hearing, Mr Chain invited the Court to note that the judge had not told Mr Solomon Chong in terms that his mitigation was rejected and submitted that he had not made that otherwise clear.  Accordingly, he suggested that sentencing had to proceed on the basis of the mitigation was accepted.

A CONSIDERATION OF THE SUBMISSIONS

Mitigation

18. At the outset of mitigation, Mr Solomon Chong provided the Court with a handwritten letter from the applicant attached to which was a handwritten Curriculum Vitae.[9]

19. In the course of mitigation, Mr Solomon Chong said :[10]

“ One interesting feature in this case is that the defendant is not in possession of any financial data. As is apparent from the statement of PW2, Mr Lam, the general manager of defendant’s employer, the defendant is not in charge of finance or accounts. He could not have caused the contract to fail. Whatever he could have done, no financial loss could have been caused to his employer in whatever form. In any event, his employer has been successful in the tender.

The root of the problem is he has some difficulty with the management of his employer. Ever since there has been some change in the senior management personnel, there has been some change of policy such that his salary has been reduced from 120,000 per month to 56,000. I do not intend to be cynical but to this extent, he is rather the victim. There is no possibility of recurrence of such an incident, and in fact whatever he has -- he might have uttered, such a scheme would simply not have any chance of success.

This incident reminds me of what we have learnt on day one criminal law, the attempting-the-impossible concept.  And as PW2, Mr Lam, the general manager of the employer, also confirmed, the defendant has no authority or jurisdiction to withdraw whatever financial data he might have suggested he could.”  [Italics added.]

20. In the face of the assertion by Mr Solomon Chong that there was no need for sentence to reflect an element of personal deterrence, an interchange ensued between the judge and Mr Solomon Chong :[11]

“ COURT: Sorry, what about the deterrence of others?

MR CHONG: I do beg your pardon?

COURT: What about the deterrence of others?

MR CHONG: As I’ve said, the facts of this case is singular and unique. It has no chance of success at all. It’s made more of a joke than of a seriously planned scheme. The necessity to deter others would appear to me at least to be somewhat academic.

COURT: I’m sorry. I don’t really follow. The defendant asks to meet and in fact does meet on 10 July with the representative for a company who is hoping to bid for this or retain a contract worth $406 million, and he offers to do something detrimental to his own company. How is that a joke?

MR CHONG: Because there is no chance of being attained at all.

COURT: Well, what was the point of meeting with this man and soliciting $6 million?

MR CHONG: Now, he did of course utter this but accept the...

COURT: This is not a casual conversation. This is -- they’ve arranged to meet. It’s followed up with a number of short messages.

MR CHONG: As I read from the facts and the statements of Mr Kwok, PW1, the meeting was arranged because they had something to discuss...

COURT: Yes.

MR CHONG: ...but not with the sole intention of that particular point. Eventually, well, something was uttered. Yes, that was agreed.

COURT: But he says -- he asks whether Serco was interested in getting back the contract. He says it’s not in terms of the management and has some financial data relating to it.

MR CHONG: Yes, but in paragraph 4, “defendant asked to meet Kwok for some private matters”. I think it must be common ground that in the conversation, something else was discussed. Well, this of course was uttered as well.

COURT: But he actually comes up with the figure 1.5 per cent.

MR CHONG: Well, that I do not argue. Yes, indeed.

COURT: It’s a gross breach of trust of his own company and an attempt for him to get $6 million. He is acting detrimental to his own company.

MR CHONG:  He is acting detrimental to his own company but it’s not an ordinary breach-of-trust case in that he did not default with the money of the company or divide it into commission portion or something like that as usually seen.  But of course I do admit that if the scheme was carried out at all, it would end in detriment to the company, to the employer.  I can say that.”

21. We are satisfied that, in the passages cited above, the judge made it perfectly clear that he did not accept the mitigation advanced on behalf of the applicant, namely that the applicant was never in a position to seek to cause Greater Lucky to give up or delay signing the contract.  In face of it being asserted that the claim that the applicant had made to Mr Kwok “had no chance of success at all.  It is made more of a joke that they seriously planned scheme”, the judge questioned the point of the applicant asking to meet and meeting Mr Kwok, observing that it was followed up with a number of short messages.  It is to be noted that the Amended Summary of Facts accepted by the applicant stated that the applicant said to Mr Kwok :[12]

“ He had some financial data of Greater Lucky relating to the Contract. The data show that Greater Lucky would lose several $10 million. The defendant could do something to cause Greater Lucky to delay signing the Contract.”

In that context, in questioning the point of the meeting, the judge noted that the applicant solicited $6 million, stipulating the figure 1.5%.

22. It is to be noted that the applicant’s claim to Mr Kwok that he had some financial data of Greater Lucky relating to the contract was never particularised.  On the other hand, it is to be remembered that the Amended Summary of Facts stated that the applicant “was assigned to act” for Greater Lucky relating to the tendering and other matters of the contract.

23. Although Mr Solomon Chong mentioned the statement of Mr Lam, whom he described as being PW2, and to whom he referred twice in mitigation as supporting the position that the applicant did not have “authority or jurisdiction to withdraw whatever financial data he might have suggested he could”, he never suggested that the Court look at his statement let alone receive such evidence.  In face of the judge’s clear rejection of that basis of mitigation that was the choice available to the applicant.  Mr Solomon Chong did not make any such application.  In those circumstances, as he had made clear, the judge was entitled to proceed to sentence on the basis that he rejected that aspect of mitigation.

The starting point

24. In support of his admission that the starting point taken for sentence by the judge of 4½ years’ imprisonment was manifestly excessive Mr Chain has referred the Court to a number of judgments of this Court, noting that in those cases monies were actually paid or received.  By contrast, the point is made that no money was received by the applicant.  Of course, that is primarily because the applicant’s plan failed.  In any event, as was pointed out by the respondent in the Attorney General v Yung Tak Kee [13] this Court pointed out that the culpability that arises from soliciting an advantage does not depend on whether or not the advantage is obtained.  As counsel for the respondent pointed out, in the judgment of this Court in that case Roberts CJ said of the offence of soliciting an advantage :[14]

“ the gravity of the offence lies in the demand, which is in itself sufficient to warrant the recommended sentence, whether or not it is followed by payment…”

25. We are satisfied that, given the applicant’s position within Greater Lucky, namely as a Transport Affairs director of Yue Xiu assigned to its subsidiary to act in tendering and related matters, the applicant’s conduct, the judge was correct to describe the applicant’s conduct as “a significant breach of trust in that it related to his company standing to lose a very substantial contract.” [15]  Furthermore, as the judge said the $6 million solicited by the applicant “was a very large sum of money”.  His plan was to benefit himself very substantially whilst causing the loss of the substantial contract to Greater Lucky.  In those circumstances, we are satisfied that the starting point of 4½ years’ imprisonment was entirely justified.

Character

26. In sentencing the applicant, the judge acknowledged that he was dealing with the man of 66 years of age, with a “clear record”. [16]  He noted that the applicant held “several professional qualifications relating to transport and tunnels and as a council member of the Chartered Institute of Transport in Hong Kong.” [17]  Further, he said that the applicant had held various senior management positions with large organisations in Hong Kong.  In addition, he noted that the applicant had been “actively involved in a number of charitable and sporting organisations”.[18]  Clearly, that was a reference to the point made in mitigation, supported by the applicant’s own handwritten letter to the Court, namely that the applicant had :[19]

“ …undertaken various community services by serving in Yan Oi Tong (one of the five major charitable organisations in Hong Kong), leading the Soccer Team of a District Sports Association and sponsoring Dragon Boat racing in Sai Kung”

No further information had been provided to the judge.

27. At the resumed hearing counsel for the applicant applied to the Court to admit fresh evidence which, in part, confirmed that the applicant played a role in Yan Oi Tong.  Mr Chain readily admitted that the material was available at trial and accepted that there was no cogent reason why it had not been placed before the judge.  In the event, we declined to accept that fresh evidence.

28. There being nothing advanced before the judge, or for that matter in the material sought to be adduced as fresh evidence, that established substantial positive good character in the applicant there was no basis on which the applicant was entitled to any discount in sentence in excess of the one-third of that taken for the starting point afforded to him by the judge.  Even if the applicant was entitled to some additional discount on that basis, such discount was subsumed by the unduly generous one-third discount afforded to the applicant for his belated plea of guilty.

Discount of sentence

29. With respect to the judge, he fell into error in describing the applicant’s plea of guilty as “timely”.  It was not.  The applicant had failed to surrender to his bail on 12 August 2013, the date set as the first day of his trial.  In consequence, the trial was adjourned and the diary of the Court disrupted by the fact that it was necessary to vacate the four days reserved for the trial.  No doubt, the attendance of counsel for the prosecution and those prosecution witnesses it was intended would give evidence on that day, was rendered useless.  Furthermore, the applicant’s conduct necessitated further hearings of the Court.  First, a ‘Mention’ hearing on 22 October 2013, after the warrant for the arrest of the applicant had been executed on his return to Hong Kong from the Mainland the previous day.  Secondly, a ‘Plea Day, on 19 November 2013, at which the applicant indicated that he would plead guilty.  Thirdly, the hearing at which the applicant pleaded guilty on 10 December 2013.  The hearing held on the date to which sentence was adjourned, namely 17 December 2013, was a separate issue not arising directly from the applicant’s failure to attend for his trial.

30. This Court has said on numerous occasions that a discount of one-third from that stipulated as the starting point taken for sentence is afforded only to ‘timely’ pleas of guilty.  In circumstances where the plea of guilty is not timely, this Court has said that it is appropriate to afford the defendant a reduced discount from the one-third discount.  The reduction in a discount will vary according to the circumstances of each case.  Here the applicant absconded for just over two months.  To his credit, there is no dispute by the respondent that he was re-arrested having advised the authorities of his intended return to Hong Kong.  In all the circumstances, the applicant can count himself fortunate that the discount afforded to him for his plea of guilty was not reduced to the range of about 25% of that which was taken for the starting point.

Conclusion

31. In the result, we were satisfied that the sentence of 3 years and 1 month’s imprisonment imposed on the applicant was entirely appropriate.  Accordingly, for those reasons we dismissed the applicant’s appeal against sentence.

[1] Decision - Chu JA (CACC 444/2013; unreported, 30 April 2014).

[2] “(1) the Registrar shall, when any application mentioned in rule 41 has been dealt with by a judge, notified the decision to the appellant on Form XII.”

[3] Appeal Bundle; page 11 A-B, paragraph 12.

[4] Appeal Bundle; page 12 O, paragraph 19.

[5] Appeal Bundle; page 12 T-U, paragraph 20.

[6] Appeal Bundle; page 12 K-M, paragraph 18.

[7] Appeal Bundle; page 13.

[8] Appeal Bundle; page 13 G, paragraph 21.

[9] Appeal Bundle, pages 14 M and 16 G.

[10] Appeal Bundle, page 18 I-R.

[11] Appeal Bundle, pages 19 D - 20 F.

[12] Appeal Bundle; page 4, paragraph 4.

[13] Attorney General v Yung Tak Kee [1983] 1 HKC 331.

[14] Attorney General v Yung Tak Kee at page 333 D.

[15] Appeal Bundle; pages 12 T - 13 A, paragraph 20.

[16] Appeal Bundle; page 10 O, paragraph 11.

[17] Appeal Bundle; page 10 T-U, paragraph 12.

[18] Appeal Bundle; page 11 A, paragraph 12.

[19] Appeal Bundle; page 29, paragraph 5.