THE QUEEN v. TAM WOON-CHEUNG

IN THE COURT OF APPEAL

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JUDGMENT

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Li, J. A.:

1. Pursuant to leave the Attorney General sought a review of a sentence of two years' imprisonment suspended for three years passed on the respondent for possession of unexplained pecuniary resources contrary to s. 10(1)(b) of the Prevention of Bribery Ordinance.

2. At the time of the offence the respondent was a Clerk of Works Grade II employed in the Public Works Department with 21 years' service behind him. He was found to be in control of $335,000.00 over and above his official emoluments for which he could not give a valid explanation.

3. He was arrested in January 1983. After two days' detention he was granted bail. He was charged in January 1984 and the case was transferred to District Court for trial on the 16th of February, 1984 whereupon he pleaded not guilty. The trial commenced on the 4th of May. After 11 days of voir dire proceedings, he reversed his plea to one of guilty.

4. In passing sentence the trial judge took into consideration his plea as showing appreciation of his activities, remorse and saving of time and expenses. While fully appreciative that the respondent's possible loss of pension was not much of a mitigating factor the trial judge felt himself bound to follow the decision in the case of Wilkinson in 1977 H. K. L. R. 316.

5. Counsel for the applicant suggested that in passing such a sentence the  judge gave far too much credit to the respondent's plea of guilty and to his possible loss of pension. But the real gravamen of his argument was that the suspension of the sentence made it manifestly inadequate. He observed that since 1974 all the convictions under s.4 or s.10 of the Prevention of Bribery Ordinance attracted an immediate custodial sentence with the exception of Wilkinson's case and Carlyle's case in 1977. He drew our attention to the decision in Carlyle, 1977 H. K. L. R. 60, where an application for review of a suspended sentence was dismissed. It was held that:

"Following a conviction of an offence under s. 4(2) or s.10 of the Prevention of Bribery Ordinance the norm should be an immediate custodial sentence. But that is a norm and not an invariable. There can be no rule of thumb sentencing. There is the possibility of imposing some sentence in an exceptional case less severe than that of the immediate imprisonment."

This decision was followed in the case of Wilkinson of the same year.

6. Learned counsel for the respondent relied also on these two cases. In his contention there was no difference between the circumstances in the present case and those in the cases in 1977.  The only difference, he pointed out, was that the respondent in the present case was a comparatively junior officer whereas the other two in the other cases were senior officers. He further contended that this Court had not been informed of the particular facts of any of the other cases in which immediate custodial sentences were awarded. So far as the two cases in 1977 were concerned the Court of Appeal accepted that the absence of corrupt activities other than the acceptance of monetary gift would constitute an exceptional case justifying a lenient sentence.

7. In the case of Carlyle Mr. Justice Pickering, J. A. said at page 63 as follows:

"Similarly in the case of SIU Tung-yim, it became inherrent in the evidence that excess moneys which it fell to the accused to explain were from a corrupt source. That is not the case here as Mr. Corrigan urges that on the known facts it cannot reasonably be inferred that the respondent was a corrupt officer in any sense of accepting money as a consideration for neglecting or perverting his duties. The character evidence is of course strongly against any such interpretation. Mr. Corrigan contends that in those circumstances the conviction under s.10 may well involve a s.3 rather than a s.4 background and that is to say the acceptance of advantages rather than of bribes in the absence of any evidence as to the latter we think that was the proper view for the learned magistrate to have taken."

8. Dealing with the question whether a suspended sentence is manifestly inadequate Mr. Justice Huggins, J.A. said at page 64 as follows:

"That submission was made on the basis that the Respondent was a corrupt police officer in the sense that his excessive expenditure was made possible by his receiving advantages as inducements or rewards in his capacity as a police officer. We were referred to other cases where, after a trial, such corruption was sufficiently established. In the present case there was a plea of Guilty and no evidence was called. What might have emerged had there been a full trial we do not know, but the magistrate was right to assume that the prosecution would prove any facts relevant to the assessment of sentence, and although the maximum sentence for an offence under s.10 is greater than that for an offence under s.3 s.10 covers both types of case. On the admitted facts it was open to the magistrate to take the view that while the Respondent was not corrupt in the sense I have defined he received presents which he should have declined but which did not relate to the performance of his duties."

These views were further exemplified in the case of Wilkinson. In that case Wilkinson was convicted of an offence under s. 10(1)(b) of the Prevention of Bribery Ordinance. He was sentenced to one year's imprisonment to be suspended for one year and the Attorney General sought a review of that sentence. Mr. Justice Huggins, J. A. said at page 318 as follows:

"In the court below it was conceded that there was nothing to show that the Respondent 'acted in any corrupt manner'. It must be clear to everyone that what was meant by that was that there was no evidence that the Respondent had allowed his conduct of the negotiations to be affected, or had threatened to allow his conduct of the negotiations to be affected, by any promise or hope of reward. It is this which enabled counsel to submit that the case may properly be regarded as more akin to a s.3 case than to a case under s. 4(2). None the less, that the gift was connected with the negotiations and in that sense intended as a reward is manifest."

Later he said:

"We appreciate that the gravamen of such an offence lies in the inhibiting effect it is likely have on an official's future performance of his duties and again we say that if an immediate sentence of imprisonment had been imposed we should not have been interfered .............. A sentence of imprisonment on a Crown servant is no light matter and we are constrained by authority to hold that a sentence is no less a sentence of imprisonment because it is suspended. Moreover, although we do not have regard to possible future consequences which lie within the discretion of another authority, we are not bound to close our eyes to consequences which are certain and inevitable. The Respondent has been ordered to repay the entire sum by which he benefited and has therefore gained no advantage which falls to be weighed against such inevitable consequences."

As counsel for the respondent observed, there was no evidence adduced as to any other corrupt activities than the corrupt acceptance of money in the present case. Similarly, whatever ill-gotten gains that had been acquired by the respondent was ordered to be forfeited. Passing a suspended sentence the learned trial judge was doing nothing more than following the precedent that was set in the cases of Carlyle and Wilkinson.

9. In so doing he cannot be said to have acted unreasonably. It was for this reason that we felt obliged to dismiss the application. We indicated that we would give our reasons later, which now we do.