R. v. NG Sheung-chun

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HEADNOTE

Sentencing - Bribery - Conspiracy - Substantive Offence - Co-Defendants - Term of Imprisonment - Suspended Sentence - Repayment of Illegal Advantage.

Customs Officer conspired with superior officer and smuggler to facilitate passage of unmanifested goods across the Chinese border in return for cash advantage. Conspiracy put into effect for 15 months. Superior Officer in a separate case pleaded guilty to two substantive corruption offences and sentenced by another court to 2 years immediate imprisonment and ordered to pay over to the Crown $25,000 illegal advantage received in one month. The defendant Customs Officer pleaded guilty to 2 corruption conspiracy offences and admitted having received $80,000 over 15 month. Agreed facts indicate the superior officer the leader of the conspiracy. Wife and children of the defendant suffer from severe asthma with recent life-threatening episode.

Held: -(1) Conspiracy offences of the type in question should in general attract heavier penalty than substantive offences; (2) Acceptance by the Crown of the plea by a co-conspirator to substantive offences entitles the defendant convicted of more serious conspiracy offences to sentence comparable with that for the former, (3) Sentence for co-conspirators may vary according to differences in roles; (4) Sentence for conspiracy implemented for a period of time should be prison term fixed by multiples of the period, the multiplier to be adjusted upwards for aggravating factors; (5) Suspended sentence appropriate in cases of proven exceptional personal misfortune; (6) Special consideration, e.g. suspended term, for a corrupt civil servant admitting and willing to repay full amount of illegal gains when compared with a co-conspirator admitting and repaying only part of the illegal gains.

D.C.Case No. 118 of 1993

IN THE DISTRICT COURT OF HONG KONG

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REASONS FOR SENTENCE

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1. The defendant in this case was charged with altogether 5 offences. He pleaded guilty to the 3rd charge of conspiracy to offer advantages to public servants, contrary to common law and section 4(1)(a) of the Prevention of Bribery Ordinance, Cap. 201 and the 5th charge of conspiracy to accept advantages contrary to common law and section 4(2) of the Prevention of Bribery Ordinance, Cap. 201. Since the Crown offered no evidence on them, I dismissed the remaining three charges relating to cognate substantive offences.

2. The defendant was convicted on the basis of a set of agreed facts recorded in writing and signed by counsel. The facts are that the defendant was a Customs Officer. In December, 1991, be was posted at the Mankamto Control Point. He was asked by a senior officer of the Customs and Excise Service to assist in an arrangement whereby vehicles destined for the PRC would be allowed to cross the border without question or interference. The defendant was told that the vehicles would contain unmanifested electrical goods. In return, the defendant and those among his colleagues involved were paid a fee. In May, 1992, the defendant was transferred to Lokmachau Contrcl Point and he was approached by the smuggler to continue the same arrangement as for Mankamto. The defendant referred the matter to the aforesaid senior officer. It was agreed between the senior officer and the smuggler that $5,000 should be paid for each vehicle waved through. Towards the end of 1992, the defendant was told that the unmanifested goods included vehicles. Until his arrest, over the period of 15 months, the defendant illegally received $80,000. Immediately after his arrest, the defendant co-operated fully with the ICAC. He gave information which assisted the investigation.

3. Miss Chow submitting in mitigation for this defendant produced a number of documents which must be accepted as authentic and accurate. There is a Certificate of Service from the Customs and Excise Department which states that the defendant had served with the department for over 11 years. His performance before the offences was rated overall exceptionally efficient and effective. At the time of his arrest, the defendant was earning $11,600 per month. The defendant's wife has had a long history of severe asthma. There is a report from the Faculty of Medicine of the Chinese University to the effect that she had to be admitted to the intensive care unit for a life-threatening asthma attack in May 1992 and that she is still under regular high dosage medication. Two doctors have also certified that the daughter aged 6 and the boy of 17 months have inherited asthma from their mother and that they are severe cases too. The boy, for example, has had 6 attacks during the last 6 months.

4. Miss Chow says that the said illnesses in the family put a very heavy financial burden on the defendant. Each medical visit costs $300. In addition, the defendant contributes $4,000 to his mother for her upkeep.

5. Regarding the offences, Miss Chow said that at some stage the defendant wanted to get out of the racket but he was threatened and so could no quit. Besides, he was in a manner of speaking driven by unfortunate family circumstances into looking for extra money. My attention was drawn to a connected case in which another officer pleaded guilty to two substantive corruption offences and was given two concurrent sentences of 2 years immediate imprisonment. Mr. Zervos for the Crown, acting as fairly as he could, confirmed that the other officer sentenced to 2 years imprisonment is one Inspector Li who was one of the conspirators in both conspiracies for which this defendant is convicted. It has not been suggested by the Crown that the sentence for Inpector Li is manifestly inadequate.

6. It is well established principle that the defendant should be sentenced for the offence he is convicted. Here, the defendant is convicted of conspiracies in aid of smuggling activities that went on for many months. There is clear authority to the effect that a conspiracy may attract a heavier penalty than that for the substantive offence. In R. v. Morris [1950] 2 All E.R. 965, Goddard, L.C.J. at p. 968 said,

"In many cases, especially if the evidence showed that the defendant had been concerned in only one offence, it would obviously be wrong to impose, on his conviction of conspiracy, a longer sentence than he could have received if he had been merely convicted of the substantive offence. When, however, it is found, as in this case, that the defendant has been engaged in smuggling on a very extensive scale over a period of many months the same consideration do not apply."

7. Furthermore, in R. v. Field [1964] 3 All E. R. 279, the English Count of Appeal drew the distinction between conspirators who obstruct law enforcement officers and persons who conspire to pervert the course of justice. Lawtor, J (as he then was) delivering the judgment of the court held that the latter offenders are far more reprehensible and must expect severe punishment.

8. In the present case, the defendant, as a Customs Officer, conspired to facilitate smugglers - the very people he should have brought to justice. The conspiracy in this case is in effect a conspiracy to pervert the course of justice. It is an aggravated type of conspiracy due to both the position of the defendant and the object of the conspiracy. It seems imperative that the defendant receives a heavier sentence than that may be imposed on a person convicted of a cognate substantive offence. Since Inspector Li convicted of two substantive offences was sentenced to two years imprisonment, this defendant convicted of two whole conspiracies should receive a longer prison sentence. Not fair, said Miss Chow, when in terms of criminality her client is less culpable. She says that Inspector Li was the more to blame for he was the person in command, he had the rank and he got more advantage out of the criminal enterprise.

9. I am not aware of any authority on the proper approach for the defendant's case. Both counsel for the Crown and counsel for the defendant seems to think that I should have regard to the sentence imposed on Inspector Li by another court. But I do not know the basis, i.e. the facts, on which Inspector Li was convicted and sentenced for the substantive offences. Information was not forthcoming as to why charges of conspiracy were not pursued against Inspector Li. The Crown was not even able to tell me which court sentenced Inspector Li. But for sure Inspector Li was not tried and so was not acquitted so far as the conspiracies are concerned.

10. Although Inspector Li was in fact a conspirator in the two conspiracies, by accepting the plea of guilty to two substantive offences and not pursuing conspiracy charges, the Crown made it impossible for the court that dealt with Inspector Li to sentence him for the more serious conspiracy offences. Of course I am not criticising the Crown for its handling of Inspector Li's case. But once the nature of a case has been coloured by the Crown in the prosecution of one defendant, a subsequent court in dealing with another defendant of similar circumstances in a connected case should, as a matter of principle, view the connected case in the same colour and put the latter defendant on the same footing with the first defendant. Otherwise, there would be manifest discrimination. Thus, for example, if A and B are found jointly in possession of an offensive weapon, A having been sentenced on the basis of offence contrary to section 27 of the Summary Offences Ordinance, B should not be dealt with on the basis of offence contrary to section 33 of the Public Order Ordinance.

11. Accordingly, since Inspector Li was just as much a conspirator as the defendant before me and both of them have gone on to implement the conspiracies, I should consider sentence for the defendant as if he had been convicted of offences no more serious than that committed by the inspector. But that is not to say that this defendant should receive the same sentence as his co- conspirators. In R. v. Boal [1964] 3 All E.R. 274 at 276, Widgery, J (as he then was) observed that in any given case the court must look at the part played in the conspiracy by the particular person, bearing in mind that in a large undertaking of this kind, there may be different shades of guilt between those who played different parts in the conspiracy. In the present case, Inspector Li was not just a co-conspirator. He in fact recruited this defendant into the first conspiracy. He negotiated and agreed the "price" for the "services" to be pandered by the Customs men at the Mankamto and Lokmachau Control Points. He was a commissioned officer compared with the defendant who is the lowest among the rank and file. It is clear that he was the brain and controller on the Customs side of the conspiracies.

12. In the premises, the sentence for this defendant after giving him credit for his guilty plea should be less than that for Inspector Li but not so much less as to diminish the deterrent effect of the sentence for corruption offences. In Lai Yuk- kui v. The Queen [1981] H.K.L.R. 691, Roberts, C.J. held that the minimum for a substantive corruption offence is twelve months imprisonment. In A.G.v. Tsang Wai-kwong, Application for Review No.2 of 1985, the Court of Appeal affirmed that for a junior prison officer convicted of a substantive corruption offence the usual minimum sentence should be one of 12 months immediate imprisonment. But, clearly, the minimum is not applicable here. I think the starting point should be fixed by reference to the factual gravity of the offence. For corruption activities that span over a period of time, I would multiply that period by a factor of at least two and use the product as the starting point. If there are aggravating factors, such as exceptionally large amount of advantage taken, or the defendant being in a senior position of trust, or the aim of the corruption seriously undermines a vital function of public administration, the multiplier should be adjusted upwards to obtain an increased sentence.

13. The conspiracies continued for 15 months for this defendant, the starting point should be 15 x 2 = 30 months imprisonment. The advantage he took was not exceptionally large. He was not holding a senior position. The mischief he did was to facilitate economic crimes rather than undermining the cone operation of public administration. Hence. I found no justification for going beyond the starting point of 30 months. Giving the defendant the full one-third discount due for the guilty plea, 20 months imprisonment for each offence seems just appropriate particulary having regard to the sentence passed on Inspector LL Since both conspiracies essentially overlap in time and in terms of object, the sentence of each conspiracy offence should run concurrently.

14. In numerous cases concerning other offences, upon being shown evidence of personal misfortune sufferred by the defendant. higher courts have seen fit to nullity the harsh effect of an immediate custodial sentence by either suspending it or reducing it to enable the defendant's immediate release. See, for examples Chow Kut-shing v. R. (Crim. App. 903/69) and Li Kam-chung v. R. (Crim. App. 157/72) reported in Addison's Digest 1968-73, and Lee Chun-sing v. R. (Crim App. 347/78) and Li Siu-chor v. R. (Crim. App. 395/78) reported in Addison's Digest 1978-80. For corruption cases, both in Lai Yuk-kui v. The Queen and in A.G. v. Tsang Wai-kwong. higher courts have indicated that in exceptional cases, a lighter sentence or suspension of a custodial sentence may be appropriate. Indeed, in A.G. v. Tsang Wai-kwong, the Court of Appeal cited with approval the case of A.G. v. Leung Hung-hang, Application for Review No. 19 of 1983, wherein Sir Alan Huggins suspended the custodial term for a corrupt prison officer on the ground that the officer's girl friend was pregnant and that it was desirable that the child should be legitimated.

15. Here the defendant is in most unfortunate circumstances. His wife and children are afflicted with severe asthma Having served as a coroner, I know asthma can attack at any time and if urgent attention is not given the attack can quickly turn fatal. The wife has had a recent life-threatening attack. And if she is down, say just struggling with an attack, and one or both of the children also at or about the same time turn worse for their illness, who would take them to hospital and give them support when they are in hospital? There is every possibility that an immediate custodial sentence for the defendant may turn out to be death sentence for his wife and/or children. These are certified genuine hardship which no defendant can manufacture for self-serving purpose. On this ground alone. the prison term should be suspended.

16. There is also another factor to be taken into account. This defendant is honest enough to admit that over a fifteen month period he took $80,000 by way of corrupt advantage which of course he must repay to the Crown. Now, Inspector Li admitted he took $25,000 in the month of September, 1992. No one can be so naive as to think that the inspector being the ring leader actually received less than $80,000. But, for technical reasons, Inspector Li is only required to surrender $25,000 and he may pocket the remainder of his illegal gains. There is, therefore, the situation where the defendant being completely frank and honest about his crime suffers, together with his poor family, more financial hardship compared with another one who should bear more responsibility. The differential in prison term only reflects the different roles of the inspector and this defendant, it does not redress the imbalance of justice about the proceeds of crime. Honesty should have its reward. As the defendant wants to and has to repay more, he should be allowed time out to work to redeem himself.

17. I did not forget the option of further reducing the immediate custodial sentence as a means to alleviate hardship. But I thought that has the disadvantage of eroding the principle on which I derived the quantum for sentence. I would rather maintain the 20 months prison term and suspend it for the exceptional circumstances in this case.

18. Accordingly, I sentenced the defendant to 20 months imprisonment for each offence, to run concurrently, but suspended for three years. For future effect, I said in open court that the Court of Appeal may not approve the suspension. That is an indication calculated to make known to the public that suspension in these cases is not a matter of course but a measure taken with grave reservations.

Dated this 15th March 1993.