HKSAR v. CHENG CHONG SHING

CACC 100/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 100 OF 2003

(ON APPEAL FROM DCCC 1141/2002)

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J U D G M E N T

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Hon Lugar-Mawson, J (giving the judgment of the Court):

Background

1. The Applicant, Cheng Chong Shing, was charged with:

(1)	six offences of accepting an advantage as an agent, contrary to ss. 9(1)(b) and 12(1) of the Prevention of Bribery Ordinance (the Ordinance), Cap. 201. These were the charges 1, 2, 5, 6, 7 and 8;
(2)	two offences of conspiracy to accept advantages as an agent, contrary to ss. 9(1)(b) and 12(1) of the Ordinance and ss. 159A and 159C of the Crimes Ordinance, Cap. 200. These were the charges 3 and 4; and
(3)	two offences of conspiracy for an agent to use a document with the intention of deceiving his principal, contrary to ss. 9(3) and 12(1) of the Ordinance and ss. 159A and 159C of the Crimes Ordinance. These were the charges 9 and 10.

2. On 27 January 2003, Judge Sweeney in the District Court convicted the Applicant of charges 1, 2, 3, 4 and 9 on his own plea. The other charges were left on the court's file. On 21 February 2003, after giving him a one-third discount in sentence to reflect his guilty pleas, the Judge sentenced the Applicant to serve:

(1)	8 months' imprisonment on charge 1;
(2)	8 months' imprisonment on charge 2, to be served concurrently with the sentence on charge 1;
(3)	2 years' imprisonment on charge 3, to be served consecutively to the sentence on charge 1;
(4)	2 years imprisonment on charge 4, to be served concurrently with the sentence on charge 1; and
(5)	2 years' imprisonment on charge 9, to be served concurrently with the sentence on charge 1.

Thus, making a total sentence of 2 years' and 8 months' imprisonment.

3. The Applicant now seeks leave to appeal against his sentences. Mr John Marray of counsel represents him.

The Facts

4. The Applicant was a senior freight officer working for Qantas Freight Hong Kong, a subsidiary of Qantas Airways Ltd. He was responsible for handling freight reservations for forwarder companies who bought cargo space from Qantas Freight.

5. In September 1997, the Applicant accepted an advantage of $2,000 to $3,000 from Addy Hung Ka Wai of Keen Shing Ltd as a reward for his showing, or having shown favour, to Keen Shing in the reservation of cargo space. This was the subject of charge 1. In October 1997, the Applicant accepted a further sum of $8,000 from Addy Hung for a similar purpose. This was the subject of charge 2.

6. Between June 1999 and August 2000, the Applicant accepted monthly payments of $8,000 from Wei Show Ying of Columbus Express Hong Kong Ltd as a reward for his showing, or having shown, favour to Columbus in the reservation of cargo space. This was charge 3. At the Applicant's request, the payments made by Wei Show Ying increased to $10,000 per month in the period between August 2000 to May 2002. This was the subject of charge 4. The Applicant received a total of $330,000 by way of advantages from Wei. He paid this money into his own or his wife's bank account.

7. In October 1999, Wei Show Ying and the Applicant agreed to a scheme in which the Applicant was to invoice Columbus at the rate of $17 per kilogram of goods loaded, instead of the normal rate of $20 per kilogram and the $3 difference was to be paid to the Applicant. Around 9 October 1999, the Applicant gained access to Qantas Freight's computer and altered an invoice addressed to Columbus by changing the charging rate of two loads of goods from $20 to $17 per kilogram. He ensured that the file copy of the invoice in Qantas Freight's records showed a charging rate of $20 per kilogram. As a result, Columbus sustained a loss of $55,284, which Wei paid into the Applicant's bank account. This was the subject of charge 9.

Appeal against sentence

8. Mr Marray does not claim that the individual sentences passed by the judge, or his pre-discount starting points were excessive. It is the substance of his application that credit by way of a reduction of sentence should now be given to the Applicant for post-sentence assistance he gave the authorities in the prosecution of both Addy Hung and Wei Show Ying.

9. We are informed that while on remand awaiting sentence after his pleas of guilty, the Applicant gave a witness statement to the Independent Commission Against Corruption. Based on information in that statement, Addy Hung was charged with two charges of offering an advantage to an agent. His case was heard between 29 May 2003 and 5 June 2003 at Kowloon City Magistrates Court. The Applicant was the principal prosecution witness and he gave his evidence in accordance with his statement. The Magistrate found that Hung had a case to answer. Hung gave evidence in his own defence, denying that he had offered bribes to the Applicant. The Magistrate did not accept the Applicant's evidence and acquitted Hung on both charges

10. Based on information in the Applicant's statement, Wei Show Ying was charged in the District Court with two offences of conspiracy to offer advantages to an agent and two offences of conspiracy for an agent to use documents with the intention of deceiving his principal. Her trial was fixed for 30 September 2003. The Applicant was to be the principal prosecution witness against her. Wei, however, pleaded guilty to the two charges of conspiracy to offer advantages to an agent and was sentenced to consecutive terms of 2 years' imprisonment on each of those two charges. The other two charges were left on the court's file. As a result of Wei's guilty pleas, the Applicant was not required to give evidence.

11. The Judge was aware at the time of sentencing the Applicant of his statement to the ICAC and of his willingness to give evidence against Hung and Wei at their trials. As at the time this was only an unfulfilled promise to do so, he felt that he could give no credit for it, saying:

"The defendant had indicated on the last day that he was willing to give evidence against his co-conspirators. As both the prosecution and defence have fairly acknowledged, this could take a considerable time before any of them are brought to justice, and it is true to say that should the defendant give evidence in court in future in accordance with what he has apparently already stated to the ICAC in an interview, then an application could be made to either the Court of Appeal or the Chief Executive of Hong Kong for a remission of sentence."

12. As this court made clear in R v Ng Hon Kit & Anor [1991] 1 HKLR 56, at page 60, lines F-G, this was the right approach for the Judge to take.

13. The Applicant's application for leave to appeal against his sentences has been brought within the time provided for by the Criminal Procedure Ordinance and, as this Court made clear in R v Mak Chan Pui Criminal Appeal No. 483 of 1992, cited with approval in HKSAR v Kwan Yun Hang [1997] 4 HKC 291, this Court is, in those circumstances, the correct forum to consider a reduction of the Applicant's sentences.

14. Matters have moved on since the time of sentencing and the Applicant has fulfilled his promise so far as he has been able to do so. Although the Magistrate in Hung's trial disbelieved him, we are told that he gave evidence in accordance with the statement on which the prosecution was based and we accept that he should receive credit for that. Although he was not required to give evidence against Wei as a result of her guilty pleas, there is no reason to believe that he would have refused to do so had she had taken the issue to trial. Indeed, it could be said that by pleading guilty she accepted the truth of the allegations he made against her in the statement. This court has accepted in the past that Appellants who are prepared to testify against their confederates should not lose the benefit they would have gained from so doing because the confederate accepts the truth of the case against him and pleads guilty (see: R v Yan Im Kun Criminal Appeal No. 680 of 1996 (unreported).

15. We are of the view that it is appropriate to reduce the Applicant's sentence to reflect his cooperation with the authorities and the fulfilment, so far as he has been able, of his promise to assist in bringing other offenders to justice. We are however not persuaded that the reduction should be as high as the 50% reduction Mr Marray argued for. There is no indication this Applicant falls into the "supergrass" category, neither is there any indication that he, or his family, stand in any danger as a result of his cooperation with the authorities.

16. We therefore grant his application for leave to appeal and treating this hearing as the hearing of the appeal, we order that he serve his sentence of 2 years' imprisonment on charge 3 concurrently, not consecutively as ordered by the Judge, with his sentence on charge 1. This means that his total period of imprisonment is reduced from 2 years' and 8 month's imprisonment to a period of 2 years' imprisonment.