HKSAR v. WEI SHOW YING

CACC434/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 434 OF 2003

(ON APPEAL FROM DCCC NO. 306 OF 2003)

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J U D G M E N T

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Hon Ma CJHC :

1. On 30 September 2003, the Applicant, then aged 45, was convicted on her plea by His Honour Judge Wesley Wong in the District Court of two charges of conspiracy to offer advantages to an employee of Qantas Airways Limited in order to secure more cargo space for the company for which she worked. These charges were brought under sections 9(2)(b) and 12(1) of the Prevention of Bribery Ordinance, Cap.201 and sections 159A and 159C of the Crimes Ordinance, Cap.200. She was sentenced on the same day to 2 years' imprisonment for each charge, both sentences to be served concurrently.

2. She now seeks leave to appeal against sentence.

3. The facts show that the Applicant was the manageress of a freight forwarding company, responsible for the day-to-day operations of it. This included dealing with airlines to secure cargo space to carry the goods of the freight forwarding company's customers. One of the airlines with which she dealt was Qantas Airways Limited and specifically within that airline, Qantas Freight Hong Kong. She became acquainted with the Senior Freight Officer of Qantas Freight, a person by the name of Cheng. Wishing to secure more cargo space with Qantas Freight, in May 1999, the Applicant offered to pay Cheng a monthly fee of $8,000 and this was accepted. The Applicant then arranged for her company to pay this sum into Cheng's bank account every month. The first of such payments was made in June 1999. In November 1999, the Applicant was instructed by Cheng to deposit the $8,000 to his wife's account and the Applicant arranged that. In August 2000, Cheng asked the Applicant to increase the amount to $10,000 a month and the Applicant complied with this request and arranged for her company to deposit this sum into the account of Cheng's wife every month. This carried on from September 2000 to June 2002.

4. On 12 June 2002, the Applicant was arrested by the ICAC. A total of $332,000 had been paid to Cheng. Altogether, bribes had been paid to Cheng over a period of 3 years. The conspiracy was said to be between the Applicant and Cheng. Cheng was also charged and was sentenced to 2 years' imprisonment.

5. In sentencing the Applicant, the judge took a starting point of 3 years, reduced to 2 following her guilty plea. The judge took into account the Applicant's clear record and the fact that she had shown remorse.

6. In this appeal, the Applicant complains that the sentence imposed by the learned judge was manifestly excessive. Mr Wong Man Kit SC, who appears with Ms Corrina Tai for the Applicant, submits that the learned judge took too high a starting point. His main argument was essentially that the Applicant's role in the conspiracy was not such as to attract the heavier end of the scale of available sentences. Certainly, so Mr Wong argued in his written submissions, the Applicant ought not to have received the same sentence as Cheng.

7. The judge had been invited to consider this aspect but came to the conclusion that the Applicant and Cheng were to be regarded in the same light.

8. Cheng's situation differed to that of the Applicant's in the following respects :-

(1) Unlike in the Applicant's case, Cheng's conduct involved a breach of trust. Obviously, he did not have the approval or authorization from his employers to accept the advantages. In the Applicant's case, she had offered the advantages to Cheng with the express approval of her employers. We have seen a letter from her employer (in fact the Managing Director of the company) saying precisely this and praising the Applicant for her loyalty to the company.

(2) While there was no direct personal gain to the Applicant in offering the advantages to Cheng, there was as far as Cheng was concerned. He pocketed $332,000 over a 3-year period.

(3) It is clear from the report of Cheng's appeal against sentence to this court (see HKSAR v Cheng Chong Shing [2003] 3 HKLRD 989) that the acceptance of advantages from the Applicant's company was not an isolated occasion. He had accepted advantages from at least another freight forwarding company.

(4) Cheng instigated the conspiracy. It was he who first made the suggestion to the Applicant that he should be paid in return for favours. This fact came out in the course of counsel's mitigation to the court and this did not seem to have been contradicted.

9. We have been referred to a number of decisions of this court, among them Secretary for Justice v Li Cheuk Ming [1999] 1 HKLRD 59 (with the English translation at 63) and Secretary for Justice v Kwan Chi Cheong and 2 Others, unreported, CAAR 1/1000, 30 June 1999, Court of Appeal. The following principles are relevant to the present appeal :-

(1) Bribery offences involve conduct which cannot be tolerated and must call for a severe sentence in order to have a deterrent effect. As Stuart-Moore VP said in Kwan Chi Cheong at page 6:

"The Prevention of Bribery Ordinance provides the sanctions necessary to deal with breaches of this kind. The Ordinance was intended to be draconian in its effect. Bribery, whether in its acceptance or by the offering of an advantage, is an evil which can strike at the heart of commercial and public life if it is left unchecked. A punishment that fails to deter will produce all the wrong signals just as sentences which act as a deterrent will reinforce this community's efforts to rid itself of corruption."

(2) This means in practice that in almost all cases (save where wholly exceptional circumstances exist), an immediate custodial sentence will be called for.

10. Mr Wong does not argue that an immediate custodial sentence was not warranted in the present case. Instead, he has submitted that the starting point taken by the judge was much too high. For his part, in a comprehensive and fair submission, Mr Alex Lee, SGC submits that the starting point of 3 years was appropriate; at least it could not be said to be wrong in principle or manifestly excessive. While he accepted that the offences did not involve a breach of trust, Mr Lee nevertheless said that Cheng's breach of trust was committed with the Applicant's knowing assistance. This is no doubt true but the fact does remain that while Cheng's conduct involved a serious breach of trust, the Applicant's conduct did not.

11. We agree that the sentence passed was manifestly excessive :-

(1) Although in many cases the offeror of an advantage is to be seen in exactly the same way as the offeree, there were sufficient differences in the present instance to merit the Applicant and Cheng being viewed differently. We have already highlighted some of these differences. In terms of culpability, we view Cheng's conduct and circumstances much more seriously than the Applicant's.

(2) In particular, while Cheng's conduct involved a breach of trust, the Applicant was on one view carrying out the wishes of her employers and, though misguidedly, was trying to be a loyal employee. I have already mentioned a letter from her employer in which this very point is made.

12. In the circumstances of this case, we are of the opinion that in the Applicant's case the appropriate starting point for each of the offences is 24 months. We accept that the judge was right to view both offences together so that the appropriate sentences for the two offences should be served concurrently. Further, taking into account the usual discount for a plea of guilty and also certain special personal circumstances of the Applicant (and we have been provided with copies of letters from her colleagues and from her daughter) and these circumstances include her health, we have come to the conclusion that the Applicant's sentence should be reduced to a level that ensures her immediate release. We have arrived at this conclusion by reason of the unusual features of this case and are also of the view that an element of mercy must be considered appropriate.

13. We therefore give leave to appeal against sentence and treating this hearing as the substantive hearing of the appeal, we allow the appeal. There will be substituted for the 2-year term of imprisonment, a term of imprisonment that will ensure the Applicant's immediate release today.