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DCCC27/2010
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 27 OF 2010
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Date:
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19 May 2010 at 12.03 pm
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Present:
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Mr Prakash L Daryanani, SPP, of the Department of Justice, for HKSAR
Mr Selwyn Yu, SC, leading Ms Stephanie Tsui, instructed by Messrs Tang, Lai & Leung, for the Defendant
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Offence:
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Agent accepting an advantage(代理人接受利益)
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Reasons for Sentence
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1. The defendant has pleaded guilty to a charge of being an agent accepting an advantage, contrary to section 9 and punishable under section 12 of the Prevention of Bribery Ordinance.
2. The particulars of the offence are that the defendant, being an agent, namely, the General Manager of the Customer Services Division of Asia Airfreight Terminal Company Limited, between 1 September 2008 and June 2009, without lawful authority or excuse accepted an advantage, namely, a gift, loan, fee, reward or commission of $22,000 Hong Kong currency per month from a Mr Low Teck-ann, William as an inducement to or reward for or otherwise on account of the said Ma doing or having done an act in relation to his principal affairs or business, then remaining in his employment at Asia Airfreight Terminal Company Limited and not leaving the Asia Airfreight Terminal Company Limited to join Silver Express International Limited so that the said Low Teck-ann, William might have a greater chance to succeed in bidding for the business of Asia Airfreight Terminal Company when the contract between Silver Express International Limited and Asia Airfreight expired in June 2010.
3. The Summary of Facts admitted by the defendant discloses that under a franchise awarded by the Airport Authority of Hong Kong, Asia Airfreight Terminal Company Limited (“AAT”) operated an air cargo terminal based at Hong Kong International Airport to provide cargo handling services for various airlines. Silver Express International Limited has been the major cargo handling services contractor of AAT. On average, AAT paid a monthly service charge of over $2 million to SEI.
4. At the material time, the defendant was the general manager of Customer Services Division of AAT. His duties included business negotiation and supervision on the performance of ATT’s contractors, including SEI. William Low, who I will refer as D2, was the General Manager of SEI responsible for its daily operation, including its dealings with ATT.
5. Since mid-2000, AAT has entered into a contract, handling services contracts, with SEI. The latest service contract between the two companies was due to expire in June 2010. A few months before the expiry of the contract, the management of AAT would hold internal management meetings to discuss the prospect of invitations or tenders for the renewal of the contract with SEI. During these meetings, the defendant was required to specify the terms of the contract to comment on the previous performance of SEI and negotiate the contract terms with SEI.
6. After D2 resigned from SEI in mid-2008, D1 was invited to take up the post of D2 in SEI. D2 intended to bid for the contract from AAT. D1 and D2 had some discussions over these matters. During these discussions, D1 told D2 that D1 was not interested in taking up the job but was tempted by the salary offered by SEI. Eventually, it was agreed between them that a monthly payment of $22,000 would be given to D1 for his remaining in his employment at ATT and not leaving ATT to join SEI so that D2 would have a greater chance to succeed in bidding for the business of AAT when the contract between the two companies expired in June 2010.
7. After this arrangement was agreed to, between 1 September 2008 and 26 June 2009, nine payments were made of $22,000 totalling $198,000. The defendant was subsequently arrested in connection with this matter on 26 June 2009. When he was interviewed under caution, he admitted his role in the offence.
8. I am told that the defendant is a person with a clear record. This is a common section 9 offence as described by counsel. The defendant, I am told, is 60 years of age. He is a family man. He came to Hong Kong from China in 1958 and from fairly humble beginnings rose to a position of some importance in AAT. He is married. He has a grown-up son and daughter and he is part of a devoted family. I understand that all of the family are in court today.
9. He started his employment, I am told, with HSBC in 1969 as a teller and from there, he switched to being employed by a cargo handling company at the airport. In 1998, he became the general manager of the Customer Services of AAT and he was further promoted to his present position. I am told that, the defendant was, intending to retire in the near future which, of course, makes the commission of this offence all the more tragic.
10. The defendant is a man of unblemished character. I am told he is very remorseful for his involvement in this matter and I accept that. For the defendant, this is a significant fall from grace by a man who has worked hard all his life and succeeded, as I have said earlier, from humble origins to achieve a very senior position in a large organisation. The offence is a personal tragedy for the defendant and also for his family. However, holding responsible positions in large organisations imposes duties upon those holding such positions to act honestly and with probity in their dealings with other companies.
11. The actions of the defendant were clearly intended to give D2 an unfair advantage over competitors who would bid for the contract renewal with AAT. Corruption cases strike at the heart of business probity. Private sector corruption is no less serious than public sector corruption. The law requires that immediate custodial sentences should be imposed on adult offenders unless there are exceptional circumstances and counsel has quite properly conceded in this case that there are no exceptional circumstances.
12. In sentencing matters such as this, the public interest requires deterrence to be the predominant consideration. I have been referred to the case of the Secretary for Justice v Kwan Chi Cheong, a 1999 case. I have been referred to that, and various comparisons have been made with that case. It was suggested by counsel for the defendant that looking at that case and comparing it with the present case that the present case is not as serious. Particularly, it was brought to my attention that the latter offence was committed over a period of three years and it is conceded the amount was less, just over $82,000. This offence was committed some time ago.
13. I note in that case that the appellants were the people who were paying rather than accepting the advantage. The magistrate who dealt with the case said that it was absolutely clear that the three appellants in that case who were held to hostage in an economic sense as to the provision of bribes either explicitly or implicitly in making it abundantly clear that unless the bribes were paid the business of the company would be withdrawn and they would face economic ruin. Such factors do not exist in this case. Every case depends on its own peculiar facts. I accept that this defendant has had hitherto unblemished character and the effects of the conviction for this defendant are very serious.
14. I have looked at all the circumstances and I have decided that an appropriate starting point is a sentence of 9 months’ imprisonment. The defendant has pleaded guilty, so the sentence will be reduced by the usual one-third. The defendant will serve a sentence of 6 months’ imprisonment.
15. As regards the application for restitution, I make an order in terms as requested by the prosecution that $198,000 be paid and that 14 days be allowed for that payment to be effected.
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