ATTORNEY GENERAL v. CHAN KIN KEUNG

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JUDGMENT

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Hon Yang, CJ:

1. This is the judgment of the court.

2. Chan Kin Keung, the 5th accused in the court below, pleaded guilty to one charge of conspiracy to offer advantages (Charge 21) and was sentenced to four months' imprisonment by His Honour District Judge Britton.

3. This is the Attorney General's application to review that sentence.

4. The Summary of Facts which was admitted by Chan was that he was the operator of a number of vice establishments in Mongkok, Kowloon. In August 1993, he met a Senior Inspector of Police and a Sergeant, both of whom were stationed in the Mongkok area.

5. The Inspector's main duty was to assist the District Operations Officer in planning operations against illegal gambling, dangerous drugs and in particular vice establishments in Mongkok.

6. In August of that year, the Inspector and the Sergeant approached Chan who was then in control of two vice establishments, namely, Ka Wo Villa and Sun Kwun Villa. The Inspector and the Sergeant demanded that Chan should pay bribes in exchange for police protection. Chan agreed to pay $10,000 per month in respect of each villa under his control. In October, another villa, called Wan Loy Villa, was added and an additional $10,000 per month was demanded and paid.

7. Chan paid the bribes on the 26th of each month. He would place the bribe money in an envelope or had it wrapped up in paper and then give it to the Sergeant. The arrangement continued until April 1994 when the Inspector was transferred away from Mongkok to another area. The Inspector told Chan that he could only provide information regarding police decoys and therefore the amount of money each month would be reduced to $5,000 in respect of each villa and the money could be paid to the Sergeant.

8. In May or June 1994, when the Inspector discovered that the Sergeant was in fact collecting the full $10,000 per month in respect of each villa, he spoke to Chan directly and suggested that Chan should pay him, i.e. the Inspector, half the usual amount. Chan agreed and continued to make payments until September 1994.

9. The way in which the villas received the protection of these police officers was that the police would provide the identity card numbers of the police decoys, together with the addresses and telephone numbers of patrons (who would be prosecution witnesses).

10. When the respondent was arrested and interviewed under caution, he admitted that he had paid over $100,000 to the Inspector and the Sergeant. In fact, the total sum paid over that period of time was very much more than $100,000, perhaps over $180,000.

11. In passing sentence, the judge did not adopt what he perceived to be the normal minimum of 12 months in such cases but started with eight months. Giving a 25 percent discount for Chan's plea of guilty and another 25 percent for his previous good character, he passed a sentence of four months. In doing so, he was of the view that there was no evidence that the accused was engaged in the running of vice establishments. Secondly, he noted that unlike the usual cases of corruption where the initial approach was made by the person paying the bribe, here there were two senior police officers who "almost demanded" bribes.

12. Since Chan was threatened by senior police officers that unless he paid, things would not go well or be made difficult for him, the judge considered that he would have remained a victim should he report the matter to the police. In the event, the judge considered that this was, "to some extent", an exceptional case which justified his departing from the recommended minimum sentence of 12 months.

13. In this application, some eight points are relied on by the Attorney General which are clearly set out in the Application as well as counsel's helpful Skeleton Argument.

14. At the outset, we want to make it quite clear that the guideline laid down in the authorities is nothing more than a guideline, and a judge may with good reason depart from the guideline. It has been said more than once that a guideline is not a straight jacket. We would also like to emphasize that the culpability of the offeror of a bribe and the receiver of a bribe is in ordinary cases the same, and do not demand different treatments.

15. In our view, having regard to the authorities, a starting point of 36 months' imprisonment after trial is appropriate. For the plea of guilty, the respondent is entitled to be given the usual one-third discount. In respect of the particular circumstances of this case, namely that it was the senior police officers who demanded money from the respondent in a situation where the respondent, being an ordinary citizen, would feel some hesitation in reporting the matter to the authority, and taking into account that this is a Review, we would give a discount of another 12 months.

16. In conclusion, adopting the starting point of 36 months, we bring it down to 24 months for the plea of guilty, and down to 12 months for the circumstances of this case and also because it is a Review, the result is that we impose a sentence of 12 months' imprisonment.

17. Very little, in our view, turns on the question as to whether the respondent was the owner of an establishment or he was dealing with, as has been described in argument this morning, "the nuts and bolts" of the business of the vice establishment. The criminality is the same. Nor do we feel that the amount paid, whether it be $100,000 or $180,000, makes very much difference in the context of assessment of sentence.