HKSAR v. WONG CHI MING

DCCC 752/2022

[2023] HKDC 1560

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 752 OF 2022

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REASONS FOR SENTENCE

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1.  The defendant was charged with 9 counts of prescribed officer accepting an advantage, contrary to sections 3 and 12(2)  of the Prevention of Bribery Ordinance, Cap 201, 4 counts of prescribed officer soliciting an advantage, contrary to sections 3 and 12(2)  of the Prevention of Bribery Ordinance, Cap 201, one count of agent using document with intent to deceive his principal, contrary to sections 9(3)  and 12(1)  of the Prevention of Bribery Ordinance, Cap 201, one count of fraud, contrary to section 16A of the Theft Ordinance, Cap 210 and one count of doing acts tending and intended to pervert the course of public justice, contrary to Common Law.

2.  The defendant pleaded guilty to Charges 1, 2, 4, 7, 10 – 16, admitted the facts and was convicted accordingly.  The rest was put on the court file, not to proceed without leave.

FACTS

3.  The defendant joined the Hong Kong Police Force HKPF as a Police Constable on 21 March 1988.  He was promoted to the rank of Police Station Sergeant on 10 April 2016, approved to retire on 17 December 2019 and re-employed on the same day on contract basis from 17 December 2019 to 6 June 2022.

4.  Between 8 October 2017 and 5 December 2020, the defendant was attached to Patrol Sub-Unit 4 of Kwai Chung Division where he came to know his subordinates PC NG and PC TSE, and his supervisor Inspector LI. Starting from 6 December 2020, the defendant was attached to Patrol Sub-Unit 4 of Tin Sum Division and has been interdicted since 19 April 2021.  Agent using documents with intent to deceive his principal (Charge 11)

5.  On 17 December 2018 the defendant applied to HKPF for early retirement and re-employment upon his early retirement at the age of 50 and submitted a declaration form of his financial obligations.  He declared in the form that he had no outstanding debts and all information he had provided was true and correct.  In fact, as at 17 December 2018, the defendant had incurred outstanding debts totalling $1,397,284.82.

6.  Relying upon the information on the declaration form, the defendant’s application was approved.  Upon early retirement, on 17 December 2019 and 29 April 2020, the defendant received his pension totalling $2,564,400.

Loan fraud (Charge 12)

7.  On 1 September 2020, the defendant attended the office of Hong Kong Police Credit Union and applied for a loan.  The defendant falsely declared that he had not applied for loans from other banking or financial institutions.  In fact, as at 1 September 2020, he had incurred outstanding debts totalling $1,222,259.25.  Relying upon the false information provided, the Loan Committee approved the defendant’s application and offered him a loan of $80,100.

Acceptance and solicitation of loans from NG

8.  On 29 May 2020 upon the defendant’s request, NG (one of his subordinate)  lent him $200,000 to be repaid in 20 instalments, the defendant repaid $20,000 only. (Charge 1)

9.  On 21 January 2021 upon the defendant’s request, NG lent him $30,000, the defendant repaid $5,000 only. (Charge 4)

10.  On 2 March 2021, upon the defendant’s request, NG lent him $60,000, the defendant made no repayment. (Charge 7)

11.  On 27 March 2021 the defendant solicited a loan of $18,100 from NG but NG refused. (Charge 14)

12.  On 3 April 2021 the defendant solicited a loan of $11,100 from NG but NG refused. (Charge 15)

13.  On 29 April 2021, the defendant solicited a loan of $20,000 from NG and undertook to repay within two to three days.  NG agreed and gave the defendant $20,000 in cash.  The defendant repaid NG the sum on 7 May 2021. (Charge 16)

Acceptance of loan from TSE (Charge 2)

14.  On 4 August 2020, the defendant asked TSE (one of his subordinate)  for a loan of $100,000, TSE refused, the defendant then asked for a loan of $20,000 of which TSE agreed and transferred the money to the defendant’s bank account.  The defendant fully repaid the loan by 3 payments in November and December 2020.

Solicitation of loan from LI (Charge 10)

15.  On 7 April 2021, the defendant asked LI (his former supervisor)  for a loan of $80,000 but LI refused.

Perverting the course of public justice (Charge 13)

16.  Shortly after the defendant had his first cautioned interview at ICAC Headquarters, in the late evening of 7 April 2021, the defendant requested NG deleting all phone messages to conceal their monetary dealings.

17.  In May 2021, when NG related to the defendant that an unspecified enquiry might have been conducted upon their monetary dealings, the defendant requested NG not to mention all the loans but only mention his request of $2,200 on 7 April 2021 (loan of $3,000 or below is exempted by the Chief Executive’s Permission).

18.  On 23 June 2021, upon knowing NG would be interviewed by ICAC officers on 28 June 2021, the defendant reminded NG not to mention all their monetary dealings except the loan of $2,200 on 7 April 2021. On 28 June 2021, the defendant reiterated the matter before NG went for an interview at ICAC Headquarters.

MITIGATION

19.  The defendant aged 54, clear record, married with 2 children.  He joined the Police Force when he was 18 and has diligently served for 34 years.  Most of the time he was in the frontlines and had received a series of awards for his hard work.  His overall performance was rated as “A-Outstanding” since 2018 to 2021. 

20.  The defendant’s wife is a civil servant but the defendant used to be the main bread winner of the family.  After he left the Police Force, later in November 2022 he started working as a taxi driver.  In his mitigation letter, the defendant expressed his regret, he understood he has caused huge changes to the lives of his family.  His wife got cancer due to pressure, his daughter was unable to continue her studies and his son took the DSE exam under pressure.   

21.  During the offence period, the defendant mismanaged his finances and was under a lot of financial pressure.  He has learnt a harsh lesson and has painfully seen the impact of his actions on his family and knows how foolish he has been.  He has lost his reputation among the people he has been working with all his life.  He has lost his pension and everything which he has built through the hard work over the years. He is deeply remorseful and has pleaded guilty at the first available instance.

Sentence

22.  Any person guilty of acceptance and solicitation of loans under section 3 of the Prevention of Bribery Ordinance shall be liable on conviction to a fine at level 6 and to imprisonment for 1 year, and shall be ordered to pay to the Government in such manner as the court directs the amount or value of the advantage received by him or such part thereof as the court may specify.  

23.  The defendant having served the Police Force for over 30 years should know the importance of integrity and the consequence of committing a crime.  The defendant on 8 occasions over a period of 11 months (29 May 2020 to 29 April 2021)  solicited (loans ranging from $200,000 to $11,100)  from his subordinates and ex-supervisor and successfully on 5 occasions borrowed loans from his subordinates (later NG became his ex-subordinate), he repaid some but not all.  The general permission for loan from close personal friends is one of $3,000 and $1,500 from other persons.  The defendant knew perfectly well that he was not allowed to do so.  As in the case of Yau Chun Kit HCMA 645/2015, the defendant placed the junior officers (NG & TSE)  in an invidious position that they felt they had to lend money to him because he was a sergeant.  This placed pressure on the subordinates to not refuse his requests.  I consider the appropriate starting point of all those related to NG to be 6 months’ imprisonment and those related to TSE and LI to be 3 months’ imprisonment.

24.  Any person guilty of using document with intent to deceive his principal under section 9 of the Prevention of Bribery Ordinance shall be liable on conviction to a fine of $500,000 and to imprisonment for 7 years. There are no guidelines for this offence, the actual gravity and seriousness depends upon the circumstances of each individual case.  The defendant used a declaration form containing false information to deceive his principal, covering up outstanding debts totaling $1,397,284.82 to have his pension be released earlier and to secure a re-employment contract upon retirement.  I consider the appropriate starting point to be one of 12 months’ imprisonment.

25.  Fraud is a serious offence; any person commits the offence of fraud is liable on conviction upon indictment to imprisonment for 14 years. Likewise, there are no guidelines for fraud, the actual gravity and seriousness depends upon the circumstances of each individual case.  The defendant obtained a loan of $80,100 by providing false information to the Loan Committee covering up outstanding debts totaling $1,222,259.25.  At the material time the defendant was not in a position to repay all his outstanding debts.  I consider the appropriate starting point to be one of 12 months’ imprisonment. 

26.  Perverting the course of public justice is always a serious offence because it strikes at the very heart of the system by which law and order is enforced in the society.  Likewise, there are no guidelines for perverting the course of public justice, the actual gravity and seriousness depends upon the circumstances of each individual case. 

27.  In R v Tunney (Reynolds)[2007] 1 Cr App R 91, the Court of Appeal in England set out the relevant factors in sentencing pervert of justice at page 568:

“In our judgment, the sentence which is appropriate for offences of this nature depends effectively on three matters. The particular factors which the court must have regard to are, first, the seriousness of the substantive offence to which the perverting of the course of justice relates. The second matter is the degree of persistence in the conduct in question by the offender; and thirdly, one must consider the effect of the attempt to pervert the course of justice on the course of justice itself.”

28.  The substantive offences are those related to NG, the defendant being a serving police officer requested his ex-subordinate NG to deleted all phone messages to conceal their monetary dealings, and on 4 occasions between 7 April 2021 and 28 June 2021 the defendant repeatedly reminded NG not to mention their monetary dealings.  Should NG act as requested, evidence would be destroyed and the investigation would be hindered.  I considered the appropriate starting point should be one of 15 months’ imprisonment.

29.  I consider the overall culpability merit a starting point of 3 years.  The defendant pleaded guilty and entitled to 1/3 discount (down to 24 months), and allow a further overall 2-month deduction for his loss of career, pension rights and fall from grace.  I do not consider there to be any further mitigating factor, i.e. an overall sentence of 22 months. 

30.  As to the mandatory restitution order under Section 12 of the Ordinance, parties agreed it is upon my discretion “whether to order repayment of the whole amount or value of the advantage or only of a part of it”,  as the advantages the defendant accepted are loans required repayment, thus the favour he got out of it probably is the interest, and parties agreed initially to adopt the lowest mortgage rate during the relevant period (29 May 2020 to 3 Oct 2023)  on the outstanding payment ($265,000)  to work out the interest, the amount turns out to be $44,723.  Parties agreed the defendant is not in a position to pay this amount and do not want to force him to go bankrupt.  In such circumstances, I order a nominal sum of $5. 

31.  The further reduction will be reflected in the charges related to NG, the charges related to the declaration form and loan fraud, each respective count will have a further one-month reduction.  The sentences of the offences are to be served partly concurrent and partly consecutive as follow, making a total of 22 months:

Charge 1 3 months

Charge 2 2 months, 1 month consecutive to others

Charge 4 3 months, concurrent with others

Charge 7 3 months, concurrent with others

Charge 10 2 months, concurrent with others

Charge 11 7 months, consecutive to others

Charge 12 7 months, 1 month consecutive to others

Charge 13 10 months, consecutive to others

Charge 14 3 months, concurrent with others

Charge 15 3 months, concurrent with others

Charge 16 3 months, concurrent with others

making a total of 22 months.

Restitution Order to the government in the sum of $5 to be paid forthwith.