HKSAR v. YEUNG YUEN YEE

HCMA910/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.910 OF 1998

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J U D G M E N T

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1. The offence had been committed on 12th February 1998. For some reason, the appeal, even though lodged on 14th September 1998, has taken all these months for it to come on. I accept, of course, what Mr Cheng has told me was his instructions, that the Appellant herself never sought any adjournments or delays of this particular appeal, but the effect of the delay has of course proved to be beneficial to the Appellant, in that it now means that she has in effect served her suspended sentence which was for six months suspended for 12 months.

2. The Magistrate when imposing this suspended sentence no doubt had in mind the desirability of ensuring that the Appellant did not commit other offences of a similar nature during the operational period of the suspended sentence. But, as I said, the operational period of the suspended sentence has now expired. I am informed by Counsel that it is likely that the Appellant who was employed as a Housing Officer with the Housing Department, will face a disciplinary tribunal of her own department. I am also informed by Mr Cheng that his client has been informed by her superior that if the suspended sentence were to remain in place after the appeal, chances were high that she would be dismissed from the government.

3. I agree with Counsel that this offence had nothing whatsoever to do with the discharge of her duties as a Housing Officer. And I agree with Counsel that this offence is not as serious as it would appear to have been. The attempt by the Appellant to incite the tenant, Madam Chan Suk-fun, to mislead the ICAC was doomed to fail right from the very outset. By the time the offence was committed, the ICAC had interviewed the tenant and had, no doubt, ascertained all the facts relating to the tenancy agreement from the tenant. Having ascertained all the facts, the ICAC would have been aware that the Appellant was in breach of the conditions of her loan with the Housing Authority. That was simply a breach of the condition of her loan with the Housing Authority and no criminal offence had been committed by the Appellant whatsoever. The ICAC could have reported the matter to the Housing Authority as a breach of the conditions of the loan, but decided that the tenant, Madam Chan Suk-fun, should have a monitored conversation with the Appellant - no doubt to see if the Appellant might incriminate herself. In my view, that was taking the investigation too far. I would not go so far as to say that the ICAC entrapped the Appellant, but the fact remains, as I said early on, the incitement was doomed to fail even before it got off the ground. If the Appellant were now to lose her job in the present economic climate, the penalty would be grossly disproportionate to the offence that she committed.

4. I do not consider the probation which was recommended by the probation officer to be a realistic course at this stage because of the lapse of time, nor can I agree with Counsel that the offence is so petty that the sentence should be replaced by a conditional or an absolute discharge. The justice of the case can be met by my imposing a fine on the Appellant. The amount of the fine that I have in mind is one of $1,000 which should be of some assistance to her in the disciplinary tribunal hearing, because hopefully it can then reflect my view of the seriousness of the offence.

5. The appeal is allowed and the sentence is substituted with a fine of $1,000.