HKSAR v. FUNG KA NOK

1998, No. MA1138

HEADNOTE

1) The reference to "adult" in Roberts C.J.'s statement in Lai Yuk Kui v. R [1981] HKLR 619 at p. 694 G-H that "where an adult is convicted of an offence against section 4(1) or 4(2) of the Prevention of Bribery Ordinance, an immediate custodial sentence should normally be imposed, whether the offender is a public officer or not" must be to persons who have attained the age of 21, because the statement was made in 1981 long before the commencement of the Age of Majority (Related Provisions) Ordinance, Cap. 410, on 1st October 1990 when the age of majority was lowered from 21 years to 18 years and when the expression "adult" came to mean someone who had attained the age of 18.

2) In terms of the sentence to pass, bribing an officer to refrain from taking action against someone for an offence or offences which he is going to commit is much more serious than bribing an officer to refrain from taking action against someone for an offence or offences which he has already committed, for it would be the action of a man who intends to offend in future, probably again and again, and is trying to buy what amounts to a licence to do so.

3) When it comes to taking youngsters who have gone off on the wrong track and setting them on the right track, there is something considerably more positive about detention in a Detention Centre, where appropriate, than imprisonment.

1998, No. MA1138

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO. 1138 OF 1998

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J U D G M E N T

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1. This is an appeal against a sentence of detention in a Detention Centre passed on a young man of previous good character following his plea of guilty to a bribery offence committed when he was aged eighteen. In his Reasons for Sentence, the Magistrate, Stephen Smout Esquire, put the circumstances of the offence in a nutshell when he said that the Appellant was operating a shop which sold counterfeit compact and video compact discs. He sold eleven discs to a police officer at a special discount in the hope that the officer would not take any enforcement action against him for selling counterfeit discs in the future. The charge was of offering an advantage to a public servant contrary to section 4(1)(a) of the Prevention of Bribery Ordinance, Cap. 201. The particulars of offence reads as follows: -

"Fung Ka-nok, on the 26th May 1998 in Hong Kong, without lawful authority or reasonable excuse, offered an advantage, namely a partial release of an obligation of liability, in the form of a discount in price in the amount of about $142 Hong Kong currency arising from the sale of nine compact discs and two video compact discs, to CHONG Wai-hung, a public servant, namely Police Constable 50320 of the Hong Kong Police Force as an inducement to or reward for or otherwise on account of his abstaining from performing an act in his capacity as a public servant, namely not taking enforcement action against the said FUNG Ka-nok in respect of offences against the Copyright Ordinance."

2. On 28th September 1998, the Appellant appeared before Mr. Smout in the Magistrate's Court at San Po Kong and pleaded guilty. He accepted the Summary of Facts prepared by the Prosecution. This summary reads as follows: -

"At the material time, the defendant was the operator of a shop selling counterfeited compact discs (CD) and video compact discs (VCD) in Kowloon City, namely Shop D, G/F, No. 385 Prince Edward Road.

On 26th May 1998, during a police investigation, Police Constable CHONG Wai-hung (hereinafter called "the police officer"), whilst patrolling in the vicinity, was found to have visited the shop. There and then, he told the defendant that it was inconvenient for him to buy anything in uniform and stated that he would be back some time later.

Subsequently on the same day, the police officer returned in plainclothes and chose nine CDs and two VCDs, the total listed price of which was $220. The defendant, hoping that the police officer would not take any enforcement action against him for selling counterfeited CDs and VCDs in future, suggested to offer a special discount of $142 to the police officer which was agreed by him. As a result, the police officer had only paid $78 for the eleven CDs and VCDs.

The case was referred to ICAC for investigation. When interviewed under caution, the defendant admitted the above and was subsequently charged with the offence stated."

3. Mr Selwyn Yu of counsel, who appeared for the Appellant on 28th September 1998, then made a plea in mitigation. After hearing it, the Magistrate sent for background, Training Centre and Detention Centre reports, so the matter was adjourned. The Appellant was before the Magistrate again on 12th October 1998, but the Training Centre and Detention Centre reports were not ready. Again Mr Yu appeared for the Appellant. He made a further plea in mitigation and urged the Magistrate to pass sentence there and then even though the Training Centre and Detention Centre reports were not yet available. The Magistrate very properly decided to wait for those reports, so the matter was adjourned again.

4. On 19th October 1998, the matter resumed. All three reports were available and fresh counsel, Mr Sterling Tsu, further mitigated. It was on this occasion that sentence was passed, with the Appellant being sent to a Detention Centre. In his Reasons for Sentence, the Magistrate has dealt very fully with each of the three pleas in mitigation made on the Appellant's behalf. As to what Mr Yu said on 28th September 1998, the Magistrate said: -

"I was informed that the appellant had a clear record. It was put forward in mitigation, on the 28th September, that the appellant was 18 years old, single, who had no job at the time he sold counterfeited discs but who now had legitimate employment as a waiter. It was also submitted that this was not a classic case of corruption, in the sense that the appellant had not conveyed explicitly the corrupt message to the police officer. He had been very co-operative with the investigators throughout. Further the appellant was willing to be a witness against the police officer. The prosecution were prepared to take a witness statement from him with a view to considering if a prosecution against the police officer was appropriate. Mr Yu submitted that the circumstances of the case placed it in the exceptional category and that an immediate custodial sentence was not called for. He suggested a fine coupled with a suspended sentence of imprisonment was appropriate."

5. As to what Mr Yu said on 12th October, the Magistrate said: -

"Mr. Yu put forward further mitigation on the 12th October. The appellant had given a witness statement to the Independent Commission against Corruption and the Department of Justice were now considering prosecution action against the police officer.

Further, the police officer had solicited the advantage and put pressure on the appellant by saying to him that he had previously bought discs at cost price only. The appellant had heard the clang of the prison doors as he had been in custody since the 28th September."

6. And as to what Mr Tsu said on 19th October 1998, the Magistrate said: -

"On 19th October, Mr Tsu submitted that it was evident from the reports that the appellant had been frank and co-operative, and was genuinely remorseful. The only evidence against him had been his own cautioned statement. A decision whether or not to prosecute the police officer would only be made after the conclusion of the appellant's case. His family was very supportive and I should deal with him by way of a suspended sentence of imprisonment."

7. In the final paragraph of his Reasons for Sentence, the Magistrate explained why he sent the Appellant to Detention Centre saying this: -

"I took into account the reports called for and the mitigation put forward. I accepted that the appellant was genuinely remorseful and that he had a deeply concerned and supportive family. However, in my view, an aggravating feature of the offence was that the offer of advantage had been made so as to enable the appellant to continue with criminal activity; namely the operating of a shop selling counterfeited discs. Even taking into account his youth, clear record, plea of guilty and co-operation, willingness to be a prosecution witness and the other mitigation put forward, I was not of the view that this was an exceptional case. In my view it was a serious offence which struck at the core of the administration of justice and called for an immediate custodial sentence. I accepted the recommendation of the Commissioner of Correctional Services that the appellant was medically fit and that he was more suitable for detention in a Detention Centre. Accordingly I sentenced him to Detention Centre."

8. When directing his mind to whether or not the circumstances were exceptional, the Magistrate was probably thinking of Roberts C.J.'s decision in Lai Yuk Kui v. R [1981] HKLR 619 and the cases in which that decision has been followed. In Lai Yuk Kui v. R, Roberts C.J. said at page 694 G-H that "where an adult is convicted of an offence against section 4(1) or 4(2) of the Prevention of Bribery Ordinance, an immediate custodial sentence should normally be imposed, whether the offender is a public officer or not." Of course, that was said in 1981 long before the commencement of the Age of Majority (Related Provisions) Ordinance, Cap. 410, on 1st October 1990 when the age of majority was lowered from 21 years to 18 years and when the expression "adult" came to mean someone who had attained the age of 18. What Roberts C.J. had in mind by "adult" would not have been a teenager like this Appellant.

9. Accordingly, I am of the view that in so far as the Magistrate thought that exceptional circumstances were needed before he could avoid passing an immediate custodial sentence on the Appellant, he was in error. But this error does not mean that the sentence itself was wrong. As to that I think that two things in particular are significant. First of all, it seems to me that the Magistrate was right in thinking that it was an aggravating feature of the Appellant's offence that the offer of advantage which he made had been made so as to enable him to continue his activity. Corruption strike at the heart of society. It strikes hard when an officer of the law is bribed to refrain from taking action against someone for an offence or offences which he has already committed. If strikes even harder, much harder, when the officer is bribed to refrain from taking action against someone for an offence or offences which he is going to commit. For example, if a professional driver who has been stopped by a traffic policeman from speeding bribes the officer to let him off that one time, that is bad enough even if the driver resolves to be more careful in future. It would be far worse if a professional driver were to bribe a traffic policeman to look the other way whenever he speeds in future. That would be the action of a man who intends to offend in future, probably again and again, and is trying to buy what amounts to a licence to do so.

10. The second significant thing is that the immediate custodial term imposed by the Magistrate on the Appellant was not a term of imprisonment but a term of detention in a Detention Centre. When it comes to taking youngsters who have gone off on the wrong track and setting them on the right track, there is something considerably more positive about detention in a Detention Centre, where appropriate, than imprisonment. And that was done on the strength of a Detention Centre/Training Centre suitability report in which it was said: -

"Defendant had not been given proper parental guidance and control by his parents who were busy in work. He was led astray after associating with some triad-related peers in his early teens. His behaviour further deteriorated when he befriended more undesirable peers at the age of eighteen which dragged into his present offence. In view of his weak self-control and inadequate parental supervision, a period of disciplinary training would prevent him from further behaviour deterioration.

As the Medical Officer has confirmed that defendant is medically fit for detention in a Detention Centre or a Training Centre, I opine that he is more suitable for detention in a Detention Centre."

11. What the Appellant did makes one very worried for him and for society if he does not develop a very different attitude from the one which his offence reveals. It seems to me that detention in a Detention Centre will do him good even if he cannot see that now, which is understandable.

12. I have given anxious consideration to everything urged on behalf of the Appellant. But at the end of the day, I had come to the conclusion that the sentence passed by the Magistrate is not one which I can properly disturb. The appeal is dismissed accordingly.