SECRETARY FOR JUSTICE v. WONG JOHN

CA AR 3/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO. 3 OF 2012

(ON APPEAL FROM DCCC NO. 694 OF 2011)

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J U D G M E N T

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Hon Stock VP (giving the judgment of the Court):

1. On 30 March 2012 the respondent to this application was convicted after trial in the District Court by HH Judge Remedios upon two charges of misconduct in public office and two of false accounting. On 19 April 2012 he was sentenced to 240 hours of community service and a compensation order of $478,985.

2. On 11 May 2012, the Secretary for Justice applied for leave to make an application for a review of that sentence pursuant to the provisions of s 81A of the Criminal Procedure Ordinance Cap 221.  Leave was granted by the Chief Judge on 15 May 2012.

3. The application for review was filed on 21 May 2012.

4. On 11 May 2012, the respondent (defendant) filed a Form XI indicating his intention to appeal both conviction and sentence but abandoned his application in relation to sentence on 24 August 2012.  Perfected grounds of appeal on his behalf were filed on 21 August 2012.  Counsel from overseas were admitted to represent both respondent and applicant in relation to conviction and to sentence review.  Primarily to accommodate the convenience of counsel, the hearing of these applications was fixed for 25 to 27 February 2014.

5. On 27 January 2014 the respondent filed notice of abandonment of the application for leave to appeal conviction and, as a matter of law, that application therefore stands dismissed.

6. There is now before us what the Secretary for Justice terms an application for permission to withdraw the application for review of sentence.

7. In making this application, the Secretary is influenced by comments of Kempster JA in The Attorney General v Yau Lee Construction Company Ltd (AR No. 10 of 1991, unreported, 1 April 1992).  That was a case in which counsel acting on behalf of the Attorney General had intimated by a letter to the Court that the Attorney General wished to abandon the application for review.  It was pointed out by Cons VP in a direction following that letter that there was no provision enabling an application for review to be abandoned and he proceeded on the assumption that the letter was intended as “notice of the Attorney’s intention not to pursue the application when it is called on tomorrow morning, although he will, I expect, take the opportunity to explain, out of courtesy to the Chief Justice, from whom he sought and obtained leave to proceed, why it is no longer in the public interest to do so.”

8. Whether the court is bound to permit the withdrawal of such an application, or whether on the other hand it is merely a question of informing the court as a matter of courtesy, is an issue which has not been argued before us but we note that Kempster JA said in Yau Lee Construction that in the circumstances of that case “it would not be appropriate to require the Attorney General to pursue the application ... .”  That rather suggests – and we are minded to the view – that once such an application has been lodged pursuant to leave, the court is seized of the matter and that it is open to the court to insist on the application proceeding, exceptional in practice though such a course may be.  In this particular case, there is expressly an application for permission and we proceed on the basis that it is open to us to refuse permission if we consider that the public interest so demands.

9. In relation to Charge 1, an offence of misconduct in public office, it was found that between January 2002 and January 2003 the respondent had used money from the bank accounts of a Skills Development Centre at the University of Hong Kong to pay for salary and employment related expenses of his driver in the sum of $731,347.  The judge has described the circumstances of this offence at paragraphs 8 to 11 of the Reasons for Sentence.  The respondent occupied a very senior position at the Department of Surgery of the University and had himself established the Centre.  He apparently found irksome the bureaucracy which prevented him from employing his own domestic helper as a driver to drive him to and from work and for meetings; and this was the genesis of conduct by which he paid his driver with University funds kept by him in the accounts of the Centre.

10. The fourth charge was also a charge of misconduct in public office in respect of which it was proved that between late 2006 and December 2008, knowing that his personal assistant had stolen money from the Centre’s sub-accounts in the sum of $3.06 million, failed to report the theft and lent her $2.672 million to pay the money back in order to conceal the theft.  He allowed her to resign from the University without an investigation, thereby rendering her eligible to receive almost $690,000 from the Staff Provident Fund.

11. The second and third charges of which the respondent was convicted was that he made or caused to be made misleading entries in the Directors report and Account of a company called Unisurgical for the years ended 31 March 2006 and 31 March 2007, respectively.  Unisurgical was a company established by the respondent for the purpose of looking after the welfare of the staff of the Department of Surgery.  The false entries were in relation to overseas travelling expenses incurred by the company in respect of which he claimed a tax reduction of $121,763 in relation to the second charge and $2,550 in relation to the third, when in fact the expenses had been incurred in relation to his official duties with the University and had been reimbursed by the University.

12. The loss occasioned to the University in payments of the personal assistant’s superannuation was about $400,000 and the loss occasioned by the theft about $300,000.  Before the day of trial the respondent had made early and full restitution of the funds in respect of Charges 1, 2 and 3 and made payment into court on the date of sentencing for the overpayment to the personal assistant, in the sum of $400,000; the judge accepting that the failure to make earlier payment was through no fault of the respondent but due to an oversight on the part of his legal advisers.

13. The judge noted the particularly positive good character of the respondent who at the time of sentence was aged 71 years and had led a distinguished professional career in the course of which he had donated substantial sums to people in need and had raised similarly substantial sums for education and research for the Department of Surgery and the Medical School of Hong Kong University.  

14. On the other hand, she noted that his conduct constituted a serious breach of trust.

15. There are two factors said by the applicant to warrant withdrawal of the application: first, the fact that since the imposition of sentence, the applicant’s health – and he is now aged 73 years – has deteriorated significantly and, second, that he has completed his sentence of 240 hours community service and that it is in these circumstances that “the applicant is of the view that this is an exceptional case in which it is no longer appropriate to proceed with the sentence review application despite the grant of leave by the Chief Judge .... ”

16. We have had the advantage of reading the medical reports and they indeed show a deterioration in health: he has some visual impairment and some significant hearing loss and suffers from severe coronary artery disease in respect of which he has undergone angioplasty stenting procedure and takes the type of medication which normally follows that procedure.

17. We have not heard argument on behalf of the respondent but on the papers before us, we take the view, despite the distinguished career of the respondent and his positive good character, that the sentence imposed was not appropriate. The sums involved and the breach of trust and the length of time over which the offences were committed required in principle a custodial sentence, in the range of two to three years, although with the benefit of submissions, in light of a combination of his exceptional positive good character and the fact of re-compensation we might be persuaded not to have taken issue with a suspension of a sentence of two years’ imprisonment.

18. We have some reservation as to the reasons now advanced for not proceeding but we do not think this to be a case in respect of which permission should be withheld.

19. Accordingly, permission to withdraw the application is granted.

Costs

20. We will make no order as to the costs of the application for review.